Kennedy Writes an Op-Ed

25 06 2012

And Roberts agreed with it.  Therefore, it has the effect of a judicial ruling.  SB 1070 isn’t dead, but significantly crippled.  The following is my interpretation of my first cursory reading of the 76-page set of opinions.   I’ll have to delve into the ramifications later.

DISCLAIMER:  I’m not a lawyer, nor do I play one on TV.  The following is the personal opinion of someone who considers himself to be a well-educated and well-read amateur.  Someone who is a legend in his own mind, but has trouble convincing everyone else.

Majority Opinion

Kennedy wrote, and Roberts, Ginsburg and Breyer signed on.  Kagan recused herself because she helped prepare the Feds’ case while she was Solicitor General.

All of Section 3 is gone, because it was found to be substantively preemptive of Federal immigration law.  Section 5c is gone because 1986 IRCA (Reagan amnesty) did not include much punishment against illegal aliens who illegally seek work in the United States because the Feds thought they needed the cooperation of the illegals themselves to nail their real targets, those Americans that employ illegal aliens.  Section 6 is borked because, unbelievably, it’s not necessarily a Federal crime for illegal aliens to be in the United States, which has ramifications for a story I had in this blog a few days ago.  The majority opinion references a 1984 case called INS v Lopez-Mendoza to make that point.  Therefore, the illegality of illegal aliens being in the country only exists when the Federal government decides for one reason or another that it should be enforced. Section 2c is upheld because Congress has not yet disallowed sub-Federal officials from communicating with the Federal government about the presence of illegal aliens.  (Though we all know that ICE will instruct the states to turn them loose in most instances).

Dissenting Opinion I

Scalia wrote.  It’s more of a semi-dissension semi-concurring opinion.

Section 6 should have been upheld because Federal law that seems to preempt state action are really only limits on the power of Federal officers, therefore, states can have immigration policy that has different punishments than Federal law proscribes, even if Federal law must be the basis for states to determine who is and is not an illegal alien.  Section 3 should have been upheld because Federal immigration policy doesn’t just affect the Federal government, it also affects Arizonans in Arizona, and also that the Federal government isn’t much in the business of enforcing immigration law, ergo without state enforcement, there is little real enforcement.  Section 5c should have been upheld because the Federal refusal to state punishment for illegals illegally seeking employment should not be interpreted to imply preemption of states having their own punishments.  Scalia answers the Federal argument about scarce resources by stating essentially that your lack of money to put a lock on your front door doesn’t preclude me from putting a lock on my front door if I can afford it, and that it was dippy for the Feds to challenge Arizona’s unique enforcement of uniform Federal immigration law when the Feds just a few weeks ago essentially ignored its own Federal immigration law by granting executive order amnesty to Dreamers.

Dissenting Opinion II

Thomas mostly agrees with Scalia, but for a different reason:  The ordinary meaning test.  Thomas holds that nothing in SB 1070 is preemptive of Federal immigration law because they have the same obvious intent, the same goals and substance.  Thomas also fears that Kennedy’s reading of the preemption doctrine is arbitrary.

Dissenting Opinion III

Alito agrees with allowing 2b to stand because it’s outlandish for a President to state that nobody should be allowed to enforce laws that he doesn’t want to enforce, and also that the politics behind the enactment of Federal legislation isn’t necessarily the same as constructionism or the law itself on its face, and also that law should not be subservient to the ephemeral policy and budget priorities of a Federal law enforcement agency.  Agrees with Kennedy on Section 3.  Mostly agrees with Scalia on 5c, but notes that 1986 IRCA has a preemption clause on employer sanctions but no preemption clause on employee sanctions.  Section 6 should have been upheld because sub-Federal officers making arrests on Federal laws don’t preempt exclusive Federal authority over the disposition of removal cases.

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25 06 2012
Extropico

“Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide.” – John Adams

“Well, Doctor, what have we got—a Republic or a Monarchy?”

“A Republic, if you can keep it.” — attributed to Benjamin Franklin




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