NOTE: This post contains some material previously published on this blog. It is posted here as the electronic version of today’s AJC column.
Publicly, Gov. Nathan Deal embraced Monday’s U.S. Supreme Court ruling on illegal immigration, claiming that “it appears the court has upheld the major thrust of our state’s statute: That states have the right to assist in enforcing federal immigration law.”
However, there’s a noticeable undertone of caution in Deal’s statement, and in similar statements by Attorney General Sam Olens. Both men seem to realize that when read in its entirety, the court’s 5-3 opinion to overturn much of Arizona’s controversial immigration law also spells trouble for Georgia’s law.
As Deal notes, the court did recognize that “states have the right to assist” in enforcing federal immigration law. However, the key word in that phrase is “assist.” The five-justice majority was quite clear that the federal government has total authority over immigration law, and that states can assist only to the degree that the federal government allows that assistance.
The court based its ruling in part on the federal government’s clear, longstanding authority on matters of foreign policy.
“It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate states,” Justice Anthony Kennedy wrote for the majority.
The court also ruled that federal officials have the exclusive discretion to decide how and even whether to deport those who are here illegally. Contrary to the philosophy behind the Arizona law and Georgia’s HB 87, a policy of “toss-em-all-out” is not required by federal law and cannot be dictated by state legislatures.
“Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime,” Kennedy wrote. “The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community or a record of distinguished military service.”
(Among other things, that language suggests that President Obama acted within his constitutional authority when he announced that his administration would not deport illegal immigrants who had been brought here as children and raised and educated as American.)
The court did uphold, at least temporarily, one provision of the Arizona law that is also echoed in Georgia law. In both states, local and state law enforcement are empowered to run immigration checks on anybody whom they arrest or detain, even for minor traffic offenses.
In theory, the justices noted, that authority can be constitutional. But if people end up being detained for long periods of time for no reason other than to let state authorities conduct an immigration check, the law will be reviewed and thrown out.
Perhaps the most surprising aspect of the case was the broad, even radical dissent filed by Justice Antonin Scalia. He began by arguing that states are sovereign entities, then complained that the majority opinion “deprives states of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there.” In effect, Scalia was advancing the novel notion that states have an inherent right to control who crosses their borders.
“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,” Scalia wrote.
Just as remarkably, Scalia used his dissent to launch a political attack on Obama’s recent decision not to deport an estimated 1.4 million illegal immigrants who were brought here as children. Referring slyly to “the executive’s unwise targeting” of resources to combat illegal immigration, Scalia wrote:
“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 non-enforcement program envisions, will necessarily be deducted from immigration enforcement.”
At a time when the court is already under suspicion of indulging in partisan politics. Scalia plays a dangerous and irresponsible game with judicial credibility.
– Jay Bookman