The enthusiasm by which the Supreme Court eviscerated Arizona’s immigration law (known as S.B. 1070) yesterday should surprise few observers. Pittsburgh Pirates fans would noisily protest if the umpire arrived sporting a Phillies jersey. That the self-appointed referee between the National Government and the States is on the National Government’s team is not unconnected with the lopsided scorecard.
The legal arguments that carried the 5-3 decision in Arizona v. United States are worth understanding, since all are based upon the “Supremacy Clause” (Art. VI, cl. 2) of the Constitution. As typical, the Supremacy Clause is selectively quoted:
The Supremacy Clause provides a clear rule that federal law “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” 567 U. S. ____ (2012)
But Justice Kennedy omits the first bit: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States…” (italics added). Stated another way, if a conflict exists between a federal law made pursuant to an enumerated power and a State law, the federal law wins. This differs drastically from what I call the Pelosi Rule, which is the tyrannically crazy idea that if Congress votes for it, the law is constitutional, end of story.Details