In the lesser two important rulings coming down this week, the Supreme Court just upheld the striking down of most of SB 1070, Arizona's ugly immigration law that Democrats, liberals generally, immigration activists, and civil liberties advocates (rightly, it turns out) argued encroached on federal power to regulate immigration.
The other ruling due out Thursday, of course, is health care reform which virtually all constitutional scholars and legal experts have deemed uncontroversial, grounded in precedent, and manifestly constitutional. (Though most seem to expect it to be struck down anyway.)
I think this was largely expected. Most parts of SB01070 weren't debatable for sitting on the fence between federal and state power. Very little of this was a legitimate debate of federal and state power, it was mostly politics versus the constitution from the get-go.
What I find striking now in reading the dissent of Justice Scalia, easily the most conservative activist judge on the bench, is also what I found striking in the dissent of Justice William Rehnquist in Texas v Johnson (struck down a federal law making it a crime to burn the American flag as violating the first amendment.) In both instances, neither judge made a coherent legal argument as to why they thought they were right, and the majority wrong. They both made impassioned statements to their personal beliefs and opinions, but no person's beliefs can be the basis of law or a court ruling.
Justice Scalia in this case would have the court uphold SB 1070 for inappropriate personal and even obvious political reasons:
Arizona bears the brunt of the country's illegal immigration problem
That may or may not be true, but even if it is true, that is not a legal justification for allowing a state to infringe federal powers. As much as conservatives (and others for legitimate reasons) may hate the idea of the mere existence of the federal government, as well as the idea of expansive federal power, the founders had other ideals and those ideals were enshrined in the constitution.
One of those ideals is that the federal government should have (near) sole authority to regulate immigration, as only the federal government should speak for the union in matters of foreign affairs.
Justice Scalia may disagree with the founders in the original debate, but it is not his place to use the power of judicial review to ignore their will and clear intent in the form of the constitution by redefining federal power to fit his personal views of the world.
Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are simply unwilling to do so.
Neither is that a legal argument of any form. It reads more like a brief statement released by the Romney campaign, or a statement from some other politician that supported the law, but doesn't understand and can't properly interpret the constitution from a legal basis without falling back on political rhetoric.
If this is the standard under which health care reform is to be decided by the court's majority conservative wing, America is in big, big trouble.
It is not for the courts to decide on their own to allow the states to take over federal power and responsibility just because a judge thinks that the government is abdicating its responsibility. Even if that were the case -- and it's not -- that is the right of the federal government under the law. There is nothing in the constitution which says that immigration and foreign affair powers belong to the federal government unless conservative judges or politicians don't agree wit the way that power is being used, at which time it reverts to the individual states.
That would result in chaos with different and probably conflicting immigration laws for every state with a foreign border. You might need different forms of ID to enter Texas from Mexico, but not be allowed to enter Arizona at all.
The court made the correct ruling this afternoon and it's to the discredit and shame of Justice Scalia that he based his findings on his personal beliefs and Republican politics rather than the law. His finding is the very definition of judicial activism.
Arizona Governor Jan Brewer made this amazing statement after the court struck down 75% of what she argued was 100% constitutional:
Today's decision by the U.S. Supreme Court is a victory for the rule of law. It is also a victory for the 10th Amendment and all Americans who believe in the inherent right and responsibility of states to defend their citizens. After more than two years of legal challenges, the heart of SB 1070 can now be implemented in accordance with the U.S. Constitution.
Apparently Brewer and the AZ GOP losing 75% of what was challenged as unconstitutional is a victory for the rule of law (I agree, oddly.) But the second statement is beyond bizarre. The 10th Amendment says that all powers not delegated to the federal government are reserved to the states, and the court just struck down 75% of the biggest provisions as violating delegated federal powers (while reserving the right to strike down the fourth after it's implemented.) How is that a victory for the 10th Amendment, or Arizona? I think Governor Brewer is going beyond trying to spin a bad situation to her favor. I think she's being a rankly dishonest moron.