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. 

The Supremacy Clause tool shed offers two ways to clip an offending State law: a valid federal law must prohibit the State action or conflict with it. The challenge for the Court was that S.B. 1070 doesn’t actually conflict with federal law nor is it expressly pre-empted by it. Justice Kennedy, being an enterprising jurist, resorts to the more creative field pre-emption approach, which is the constitutionally dubious idea that by the mere existence of federal regulation bars States from passing complimentary laws. Justice Scalia, in a lively dissent, points out the folly of this reasoning, specifically noting that both federal and State laws mete out various sanctions for drug trafficking.

Conspicuously absent from the majority opinion is any sympathetic treatment that the States are more than municipalities of the National Government. Indeed, Justice Scalia reminds us that “Even in its international relations, the Federal Government must live with the inconvenient fact that it is a Union of independent States, who have their own sovereign powers.” Sovereignty is meaningless if States are unable to prevent the costly and potentially destabilizing results of illegal immigration.

You need not be a constitutional scholar to see the problem here. Arizona passed S.B. 1070 to counteract the National Government’s abject failure to prevent illegal immigration into its State. The social costs and burdens of illegal immigration are massive and well-documented. Now added to that pain is the federal boot on Arizona’s neck.

The Supreme Court, in an 8-0 vote, left intact §2(B) permitting Arizona to confirm with federal authorities the immigration status of a person picked up for some other offense. Easy one, right? Get pinched for speeding and Arizona law enforcement can confirm your immigration status with federal authorities. Well, at least until last night when President Obama issued an executive order ending Homeland Security Department cooperation with Arizona. The only thing possibly worse would be if Obama ordered the airlifting of Arizona maps and McDonald’s gift cards over the Mexico border.

As Justice Scalia gravely concluded his dissent, if Arizona does not have the power to secure its own territory, “we should cease referring to it as a sovereign State.” Amen.

Benjamin Gross
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