The whole thing should be struck down. However, I can see the individual mandate being the only part thrown out, and in that case, it's a big hit to insurance companies and the effects get passed down to employers and consumers.
The whole thing should be struck down. However, I can see the individual mandate being the only part thrown out, and in that case, it's a big hit to insurance companies and the effects get passed down to employers and consumers.
Reading the decision now.
First, it was a bit more complex than a "5-3" decision. The 5 who joined the majority opinion (written by Kennedy) were Kennedy, Breyer, Sotomayor, Ginsburg, and Roberts. Alito, Scalia and Thomas each concurred in part and dissented in part, while Kagan recused herself.
The full opinion is here http://www.supremecourt.gov/opinions...11-182b5e1.pdf
Here are the highlights as I see them:
"The Government of the United States has broad, undoubted
power over the subject of immigration and the status of aliens."
- I think this one is non-controversial.
"Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad."
- I'm writing this as I go, but my bet is this is the philosophical hook on which the rest of the decision will be set; the Federal government has the authority to preempt state law regarding how illegal aliens will be treated because how we treat foreign nationals impacts foreign relations, which is the sole province of the Federal government.
It's a good point, and one I hadn't considered - but I'm concerned we are opening a door, much like with the commerce clause, for which there may potentially be no limiting principle.
Now here's a quote I know will get some blood boiling:
- I agree that discretion is important, and you know where I stand on children who were born here or brought here young. But those children should not allow illegal alien parents to stay. That said, the Court is merely stressing both the existence of and necessity for federal discretion not only in setting but enforcing immigration policy.Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likelypose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual casemay turn on many factors, including whether the alienhas children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state maybe mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent
with this Nation’s foreign policy with respect to these and other realities.
NOTE: One immediately bad implication of placing immigration policy squarely in the context of "foreign relations" is that it makes the executive branch entirely supreme on this issue; Congress cannot write laws that limit the executive's discretion in issues of foreign relations.
The first section under discussion. The Court finds it preempted, because the Federal government has occupied the field, and therefore must be the only sovereign making laws governing alien registration. This is not a change from preexisting law:Section 3 of S. B. 1070 creates a new state misde- meanor. It forbids the “willful failure to complete or carry an alien registration document . . . in violation of 8 United States Code section 1304(e) or 1306(a).” Ariz. Rev. Stat. Ann. §11–1509(A) (West Supp. 2011). In effect, §3 adds a state-law penalty for conduct proscribed by federal law.
Can't say that I disagree with this decision thus far. Scalia, however, makes a good case against the application of field preemption, arguing that because States had the sovereign right to control immigration to their borders prior to the ratification of the Constitution, and retained that right after the ratification, there can be no implied preemption, and Congress would have to expressly exclude the States from the field as long as there was no conflict between state and federal law, much as would be necessary to abrogate sovereign immunity:If §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations, “diminish[ing] the [Federal Government]’s control over enforcement” and “detract[ing] from the ‘integrated scheme of regulation’ created by Congress.” Wisconsin Dept. of Industry v. Gould Inc., 475 U. S. 282, 288–289 (1986). Even if a State may make violation of federal law a crime in some instances, it cannot do so in a field (like the field of alien registration) that has been occupied by federal law. See California v. Zook, 336 U. S. 725, 730– 731, 733 (1949); see also In re Loney, 134 U. S. 372, 375– 376 (1890) (States may not impose their own punishment for perjury in federal courts). . . .
Cf. Buckman Co. v. Plaintiffs’ Legal Comm., 531 U. S. 341, 347–348 (2001) (States may not impose their own punishment for fraud on the Food and Drug Administration); Wisconsin Dept., supra, at 288 (States may not impose their own punishment for repeat violations of the National Labor Relations Act).
It's a good argument, but I think in this case what Kennedy is describing as field preemption has more in common with conflict preemption; where a Federal statutory scheme allows for discretion in enforcement, allowing states to criminalize the same conduct would strip that discretion from the Federal government. Whether or not that would be a good thing policy wise seems irrelevant to the preemption question.Like elimination of the States’ other inherent sovereign power, immunity from suit, elimination of the States’ sovereign power to exclude requires that “Congress . . . unequivocally expres[s] its intent to abrogate,”
Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 55 (1996) (internal quotation marks and citation omitted). Implicit “field preemption” will not do.
Scalia does, however, have a damn good riposte on the "but it impacts foreign relations" point:
More to come.Nor can federal power over illegal immigration be deemed exclusive because of what the Court’s opinion solicitously calls “foreign countries[’] concern[s] about the status, safety, and security of their nationals in the United States,” ante, at 3. The Constitution gives all those on our shores the protections of the Bill of Rights—but just as those rights are not expanded for foreign nationals because of their countries’ views (some countries, for example, have recently discovered the death penalty to be barbaric), neither are the fundamental sovereign powersof the States abridged to accommodate foreign countries’ views. 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. This is not the first time it has found that a nuisance and a bother in the conduct of foreign policy.Four years ago, for example, the Government importuned us to interfere with thoroughly constitutional state judicial procedures in the criminal trial of foreign nationals because
the international community, and even an opinion of the International Court of Justice, disapproved them. See Medellín v. Texas, 552 U. S. 491 (2008). We rejected that request, as we should reject the Executive’s invocation of foreign-affairs considerations here. Though it may upset foreign powers—and even when the Federal Government desperately wants to avoid upsetting foreign powers—the States have the right to protect their borders against foreign nationals, just as they have the right to execute foreign nationals for murder.
Appointing Scalia may have been the best thing Reagan ever did...
Very sound argument against Kennedy in Doggin's last post.
Scalia goes on to say he finds no conflict in any of the provisions; having eliminated field preemption from consideration, he would uphold the entire law.
On Section 3 (we'll get back to his opinion on the other issues), here's what he says:
Pyler is a very strong argument, based on that quote, at least.It is beyond question that a State may make violation of federal law a violation of state law as well. We have held that to be so even when the interest protected is a distinctively federal interest, such as protection of the dignity of the national flag, see Halter v. Nebraska, 205 U. S. 34 (1907), or protection of the Federal Government’s ability to recruit soldiers, Gilbert v. Minnesota, 254 U. S. 325 (1920). “[T]he State is not inhibited from making the national purposes its own purposes to the extent of exerting its police power to prevent its own citizens from obstructing the accomplishment of such purposes.” Id., at 331 (internal quotation marks omitted). Much more is that so when, as here, the State is protecting its own interest, the integrity of its borders. And we have said that explicitly with regard to illegal immigration: “Despite the exclusive federal control of this Nation’s borders, we cannot conclude that the States are without any power to deter the influx of persons entering the United States against federal law,and whose numbers might have a discernible impact on traditional state concerns.” Plyler v. Doe, 457 U. S. 202, 228, n. 23 (1982).
This is a decent argument but not persuasive to me. When the Federal government says "these are the punishments for federal crime X", it strikes me as an obvious conflict for a state to say "no, we are adding additional punishments for Federal crime X by calling it a state law.In some areas of uniquely federal concern—e.g., fraud in a federal administrative process (Buckman Co. v. Plaintiffs’ Legal Comm., 531 U. S. 341 (2001)) or perjury in violation of a federally required oath (In re Loney, 134 U. S. 372 (1890))—this Court has held that a State has no legitimate interest in enforcing a federal scheme. But the federal alien registration system is certainly not of uniquelyfederal interest. States, private entities, and individuals rely on the federal registration system (including the E-Verify program) on a regular basis. Arizona’s legitimate interest in protecting (among other things) its unemployment benefits system is an entirely adequate basis for making the violation of federal registration and carry requirements a violation of state law as well.
The Court points out, however, ante, at 11, that in some respects the state law exceeds the punishments prescribed by federal law: It rules out probation and pardon, which are available under federal law. The answer is that it makes no difference. Illegal immigrants who violate §3 violate Arizona law. It is one thing to say that the Supremacy Clause prevents Arizona law from excluding those whom federal law admits. It is quite something elseto say that a violation of Arizona law cannot be punished more severely than a violation of federal law.
Thomas agrees with Scalia.
Alito, on the other hand, agrees with the majority that Section 3 is preempted.
FINAL SCORECARD ON SECTION 3 - 6 votes to strike it down, only Scalia and Thomas dissenting. Not a party-line vote, which, IMO, is a very good thing.
Where I disagree is in the power of the Federal Govt to effectively non-enforce duly passed Law either by inaction or by executive fiat on broad, non-specific, non-Constitutional grounds.
Put simply, yes, the Fed. Govt. has the power to pass Immigration law, and the Executive the Power to enforce it. If either or both choose not to do so, then the burden of that INaction should be on the Federal Govt., not on the States.
All liabillity for Federal Govt. inaction or non-enforcement should fall on the Federal Govt.
What we have now is the worst of all worlds. The Feds have the power to do nothing, and we, the People, and the Sovreign States, have to foot whatever bill in gold and blood the Federal Govt. inaction creates.
And our only recourse? Elections we all seem to have less faith in, and elections where one side is pandering to the very illegals and race-based politics that encourage inaction, non-enforcement and amnesty at citizens expense.
Health Care ruling to come on Thursday...
I'd offer up the suggestion (if possible) that we "un-merge" this thread and separate it into two topics? Is that possible mods? Don't want to lose doggin's analysis, but we should probably cover the two rulings in separate threads
Let's talk about Sections 5, 6 and 2B. The vote to uphold 2B was unanimous, so we won't spend much time on that. Working my way backwards through the PDF, here's Alito on Section 5 - which criminalizes obtaining employment while illegal:
A strong start. Leaves me wondering what the majority opinion was based on:In De Canas, the Court upheld against a preemption challenge a state law imposing fines on employers that hired aliens who were unlawfully present in the United States. The Court explained that the mere fact that “aliens are the subject of a state statute does not render it a regulation of immigration.” 424 U. S., at 355. The Court emphasized instead that “States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State.” Id., at 356. In light of that broad authority, the Court declared that “[o]nly a demonstration that complete ouster of state power . . . was ‘the clear and manifest purpose of Congress’ would justify” the conclusion that “state regulation designed to protect vital state interests must give way to paramount federal legislation.” Id., at 357 (some internal quotation marks omitted)
I very much agree with Alito on this, thus far; if that truly was the majority's argument, I am unimpressed.The Court now tells us that times have changed. Since De Canas, Congress has enacted “a comprehensive framework for combating the employment of illegal aliens,” and even though aliens who seek or obtain unauthorized work are not subject to criminal sanctions, they can suffer civil penalties. Ante, at 12–13 (internal quotation marks omitted). Undoubtedly, federal regulation in this area is more pervasive today. But our task remains unchanged:to determine whether the federal scheme discloses a clear and manifest congressional intent to displace state law.
The Court gives short shrift to our presumption against preemption. Having no express statement of congressional intent to support its analysis, the Court infers from stale legislative history and from the comprehensiveness of the federal scheme that “Congress made a deliberate choice not to impose criminal penalties on aliens who seek,or engage in, unauthorized employment.” Because §5(C) imposes such penalties, the Court concludes that it stands as an obstacle to the method of enforcement chosen by Congress. Ante, at 15.
The one thing that is clear from the federal scheme is that Congress chose not to impose federal criminal penalties on aliens who seek or obtain unauthorized work. But that does not mean that Congress also chose to preempt state criminal penalties. The inference is plausible, but far from necessary. As we have said before, the “decision not to adopt a regulation” is not “the functional equivalent of a regulation prohibiting all States and their political subdivisions from adopting such a regulation.” Sprietsma v. Mercury Marine, 537 U. S. 51, 65 (2002). With any statutory scheme, Congress chooses to do some things and not others. If that alone were enough to demonstrate preemptive intent, there would be little left over for the States to regulate, especially now that federal authority reaches so far and wide. States would occupy tiny islandsin a sea of federal power. This explains why state laws implicating traditional state powers are not preempted unless there is a “clear and manifest” congressional intention to do so.
Oh, wait . . . just read a bit farther:
Wait, what? Unless such laws already existed (and they didn't), it's a real stretch to say that Congress didn't announce an attempt to preempt the field of relations between employers and illegal alien employees when they expressly preempted the only extant State laws on that subject! Sorry, Alito and I have parted ways; without even reading the majority, Alito's convinced me they are right and Section 5 is preempted.Not only is there little evidence that Congress intended to preempt state laws like §5(C), there is some evidence that Congress intended the opposite result. In making it unlawful for employers to hire unauthorized aliens, see 8 U. S. C. §1324a(a), Congress made it clear that “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws)” upon employers was preempted, §1324a(h)(2). Noticeably absent is any similar directive preempting state or local laws targeting aliens who seek or obtain unauthorized employment. Given that Congress expressly preempted certain state and local laws pertaining to employers but remained silent about laws pertaining to employees, one could infer that Congress intended to preserve state and local authority to regulate the employee side of the equation. At the very least, it raises serious doubts about whether Congress intended to preempt such authority.
Thomas' opinion on all sections is identical, so I'm going to leave him out of further discussion: he simply says that there's no preemption at all in this case unless and until the Arizona law actually impedes some federal objective in practice.
Scalia basically says the same thing Alito says on Section 5.
The majority opinion is essentially as described by Alito, and persuasive (to me, at least). The majority also notes something Alito left out: that the relevant statute allows employee provided information to be used for the prosecution of only some, but not all crimes - fraud, perjury, and related conduct, but not illegal immigration. On that basis, the argument that the Federal government made a deliberate choice not to criminally sanction illegals who obtain work is particularly strong.
State is thus barred permanenetly from any meaningful action or enforcement on that issue, as it's a Federal Power.
Thats pretty much the situation on Immigration Law in a nutshell right now.
Before I get to section 6, I'd like to offer some Scalia fan-service for Warfish. From his opinion, in his awesome and inimitable style:
Love Scalia. Even when I disagree with him, he's undeniably brilliant and thought provoking (and a fun read). Here, I think he gets it exactly right, philosophically.The brief for the Government in this case asserted that “the Executive Branch’s ability to exercise discretion and set priorities is particularly important because of the need to allocate scarce enforcement resources wisely.” Brief for United States 21. Of course there is no reason why the Federal Executive’s need to allocate its scarce enforcement resources should disable Arizona from devoting its resources to illegal immigration in Arizona that in its view the Federal Executive has given short shrift. Despite Congress’s prescription that “the immigration laws of the United States should be enforced vigorously and uniformly,” IRCA §115, 100 Stat. 3384, Arizona asserts without contradiction and with supporting citations:
“[I]n the last decade federal enforcement efforts have focused primarily on areas in California and Texas, leaving Arizona’s border to suffer from comparative neglect. The result has been the funneling of an increasing tide of illegal border crossings into Arizona. Indeed, over the past decade, over a third of the Nation’s illegal border crossings occurred in Arizona.” Brief for Petitioners 2–3 (footnote omitted).Must Arizona’s ability to protect its borders yield to the reality that Congress has provided inadequate funding for federal enforcement—or, even worse, to the Executive’s unwise targeting of that funding?
But leave that aside. It has become clear that federal enforcement priorities—in the sense of priorities based on the need to allocate “scarce enforcement resources”—is not the problem here. After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants under the age of 30. If an individual unlawfully present in the United States
• came to the United States under the age of sixteen;then U. S. immigration officials have been directed to “defe[r] action” against such individual “for a period of two years, subject to renewal.” The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conducting as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonenforcement program envisions, will necessarily be deducted from immigration enforcement. The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administration’s proposed revision of the Immigration Act. Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.
• has continuously resided in the United States for
at least five years . . . ,
• is currently in school, has graduated from high
school, has obtained a general education development
certificate, or is an honorably discharged
veteran . . . ,
• has not been convicted of a [serious crime]; and
• is not above the age of thirty,”
The Court opinion’s looming specter of inutterable horror—“[
i]f §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations,” ante, at 10—seems to me not so horrible and even less looming. But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Government that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?
A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding? Today’s judgment surely fails that test. At the Constitutional Convention of 1787, the delegates contended with “the jealousy of the states with regard to their sovereignty.” 1 Records of the Federal Convention 19 (M. Farrand ed. 1911) (statement of Edmund Randolph). Through ratification of the fundamental charter that the Convention produced, the States ceded much of their sovereignty to the Federal Government. But much of it remained jealously guarded—as reflected in the innumerable proposals that never left Independence Hall. Now, imagine a provision—perhaps inserted right after Art. I, §8, cl. 4, the Naturalization Clause—which included among the enumerated powers of Congress “To establish Limitations upon Immigration that will be exclusive and that will be enforced only to the extent the President deems appropriate.” The delegates to the Grand Convention would have rushed to the exits.
As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that gave rise to the suit. Arizona bears the brunt of the country’s illegal immigration problem. 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 unwilling to do so. Thousands of Arizona’s estimated 400,000 illegal immigrants—including not just children but men and women under 30—are now assured immunity from enforcement, and will be able to compete openly with Arizona citizens for employment.
Arizona has moved to protect its sovereignty—not in contradiction of federal law, but in complete compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State. I dissent.
Interesting question - I wonder what would happen if Arizona passed a law allowing it to deport any illegal alien within its borders out of the state? A version of "You don't have to go home, but you can't stay here"?
Under the principles expressed by the majority, I'm not sure such a law would be struck down; after all, there are no criminal penalties being imposed.
The "but what about Foreign Policy" argument is downright scary. Hell, might as well use that one to uphold the healthcare law as well. World opinions, especially Euro-opinion is in favor of a universal healthcare system. Maybe they're opinion of us will worsen if it happens to be against out constitution.