Antonin Scalia

Scalia May Have Supported Obama's Order to Legalize Undocumented Aliens

The justice got an unfair rap from liberals that he was an anti-immigrant bigot.

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Later this spring, the Supreme Court is expected to hear the case of President Obama's controversial executive immigration order. Issued in 2014, Deferred Deportation for Parents of Americans (DAPA) would not only allow

Scalia
SteveMasker via Foter.com / CC BY

millions of illegal parents to stay in the country, but also obtain temporary work permits and drivers licenses. Supporters of this so-called executive amnesty are no doubt secretly relieved at the sudden death of Supreme Court Justice Antonin Scalia. The pugnacious ideologue would have ruled against them, right? Maybe. But maybe not. Scalia may have been more persuadable than they think.

As far as liberals are concerned, Scalia was a social conservative who invoked the Constitution when it advanced his right-wing agenda (such as gun rights) and discarded it when it advanced his opponents' agenda (such as gay marriage, abortion rights, and ObamaCare). But that's a gross caricature, which ignores that, at the end of the day, Scalia believed more in judicial restraint than ideology.

Yes, Scalia issued an overwrought dissent in Arizona vs. United States, the 2012 decision that overruled much of Arizona's notorious "your paper's please" policy. In it, he took a bizarre swipe at President Obama's Deferred Action for Childhood Arrivals (DACA) order, the predecessor of DAPA that was not even before the Court. "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," Scalia railed. "Perhaps it is, though Arizona may not think so."

Such purple condemnations would seem ominous for DAPA's chances, yet a "no" vote from Scalia was far from certain. That's because Scalia had strong (though somewhat inconsistent) civil libertarian tendencies that more than occasionally came to the defense of immigrants. Also, his judicial commitment to apply the text of the Constitution and law as written may well have prompted him to uphold these programs.

According to Benjamin N. Cardozo School of Law's Andrea Saenz, "Scalia voted with his liberal colleagues for the noncitizen over the government in nearly every landmark crimmigration case [sentencing of immigrants involved in crimes] in recent history." Scalia applied something called categorical analysis in such cases, which limits the circumstances under which harsh federal sentences apply to immigrants convicted of crimes. This showed that Scalia had no inherent animus against immigrants and could be convinced by good arguments based on proper statutory construction, observes Saenz.

The standard rap against DACA and DAPA is that these programs violate the Constitution's "take care" clause, which requires a president to "faithfully" enforce the laws of the land. But, notes George Mason University law professor Ilya Somin, faithfully executing the laws does not mean that the president must prosecute every violation of every federal law. That would be neither possible nor desirable given that there are more than 3,000 different federal crimes on the books and more than 300,000 regulations. An average citizen ends up committing three federal felonies per day. For example, marijuana is an illegal substance under the federal Controlled Substances Act, and anyone who uses it is violating federal law. Yet the feds systematically fail to prosecute users, especially on college campuses. But no one claims that this failure is a violation of the Constitution.

Scalia was unlikely to endorse this argument because his originalist instincts were often overridden by stare decisis considerations, but the real issue with DACA or DAPA is not their constitutionality, but their fidelity to standing immigration statutes. And Scalia may have been persuaded that statutorily, these orders were on strong ground.

No one, not even the 26 state attorney generals suing the administration, disputes that the president has the authority to set immigration enforcement priorities under the Immigration and Nationality Act (INA). If he chose not to deport a single undocumented worker, he would be acting well within his legal prerogative (although the political fallout would be another matter). Critics also concede that the president is entitled to offer case-by-case deportation relief. What they oppose is mass relief to several million illegal immigrants.

And two of three Fifth Circuit Court judges agreed with these critics. The judges argued that the president's executive actions thwart the "Congress' stated goal of closely guarding access to work authorization and preserving jobs for those lawfully in the country." But this rationale cannot withstand the kind of strict originalist scrutiny that Scalia favored. The Constitution gives Congress no authority to restrict immigration flows to protect the labor market, except to prohibit slavery. It would be the height of hypocrisy to criticize the president for overstepping his constitutional limits while giving Congress free rein to overstep its.

However, the plaintiffs raised another, seemingly more powerful objection to the expanded DACA and DAPA programs: The programs illicitly circumvent the INA's "specific and detailed" scheme for allocating visas to various classes of foreigners. For example, the INA requires illegal immigrant parents of Americans to wait until their children are 21 before applying for a visa. And then, in order to qualify, they must spend 10 years out of the country. DAPA dispenses with all of this and creates a parallel process by executive fiat.

But what this argument, endorsed by a Fifth Circuit majority, ignores is that the INA's requirements give permanent legal status to undocumented workers whereas their legal status under DAPA is only temporary. More to the point, as the dissenting judge noted, just because DAPA status is not specified in INA doesn't mean it's illegal. The categories of foreigners covered by INA are not exhaustive and were not meant to be. Congress deliberately left much to the executive's discretion.

Congress, of course, could always amend the law and prohibit DAPA-style orders. But it hasn't. "The policy decisions at issue in this are best resolved not by judicial fiat, but via the political process," the dissenting judge noted.

This is a statement that would have resonated with Scalia and might well have prompted him to set aside his qualms and uphold these programs. And his blessing would have gone a long way toward legitimizing a pro-DAPA ruling to a cynical conservative rank-and-file that distrusts the administration on this issue. Without him, it'll just be much harder sell because no other justice — liberal or conservative — enjoys his street cred with these folks.

This is not good news for supporters of Obama's executive actions who need popular buy-in to ultimately make these programs stick. They ought to mourn Scalia's death as much as his most ardent fans.

A version of this column originally appeared in The Week.

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  1. “They regard Scalia as an inveterate bigot who would have ruled against Obama.”

    Progressives are incapable of understanding the nuances between “constitutional”, “legal” and “good policy” and will resort to vicious slander when someone dares to thwart them.

    1. I doubt that they are incapable of understanding the nuances, they just don’t care.

      Progressives are committed only to power, by any means necessary. Naturally, that includes vilification of their enemies regardless of the truth.

  2. Can we please stop using bigot to describe those who hold differing opinions. The word does not mean a person who dislikes or distrusts some idea or group, it means one who obstinately and unreasonably dislikes some idea or group. If a person is willing to listen to a counter view, and to engage that view, they are not a bigot, even if they do not change their mind. If a person is unwilling to listen to or engage a counter view they are a bigot. The people calling anyone who disagrees with them a bigot seem to fit the definition better.

    1. It has been noted once or twice around here that almost everything the progressives say or accuse others of is pure projection.

      If you want to know what they are doing simply listen to what they accuse their opponents of. If you want to know what kinds of people they are listen to the ad hominems they toss out like confetti.

      1. It’s intimidation. Their entire strategy is to vilify any opponent as loudly and overwhelmingly as possible. They do it not so much to shut the opponent up, as to send a message to everyone listening that there will be consequences if they dare oppose the party line.

    2. Also, who is ‘we’?

      1. Everyone. The set of human speakers. I wish this misuse of the word to cease everywhere.

    3. I have a progressive FB friend who I unfollowed long ago because of his regular political tirades. Today I looked at his wall page to see what he and his family have been up to lately only to find my blood beginning to boil within the first two pages.

      It’s not that I disagree with him, or that he disagrees with non-democrats. What gets my blood boiling is the palpable hatred that he has for all who disagree with him. He cannot merely point out where he disagrees, he has to impugn the person’s humanity, IQ, sincerity, or all three.

      1. I used to have quite a few leftist friends, but I drifted apart from them all since it gets painful to repeatedly have conversations that go like this

        Leftist: Unsupported but vehement statement of position
        Me: I disagree because x, y, z.
        Leftist: Aghast look, followed by misstating my position and then calling it somethingist.
        Me: I am not saying that, I am saying (restatement of my initial position, with more detail)
        Leftist: Completely ignoring restatement, doubles down on somethingist claims

      2. What gets my blood boiling is the palpable hatred that he has for all who disagree with him.

        He is a slaver. He favors the systematic violation of the rights of everyone.

        Why don’t you hate *him*?

        What is hate for, if not as motivation to defeat evil?

        They hate you for wanting to be free and trying to thwart their plans to enslave you. Why don’t you hate him for wanting to enslave you?

        This is what is grotesque in the world. The slavers are full of a passionate hatred, while believers in freedom give them a pass for their criminal intentions. Indeed, they will often say that the slavers “have good intentions, but…”. How is the will to dominate your neighbors by force a good intention?

        Sanction of the victim.

        The best lack all conviction, while the worst Are full of passionate intensity.

        The Second Coming – Yeats

        1. I get what you’re saying and sometimes I do hate others for their treatment of myself and others. But I don’t want to live that way. Hate is caustic to the hate as well as the hated.

  3. “Liberals,” or progressives/socialists, hated scalia because: they disagreed with him; and because they tend to hate people they disagree with. They seem unable to merely disagree. They hate.

  4. And meanwhile, Obama’s issuing another executive order allowing the NSA to share their data-collection with other agencies absent the screening that’s supposed to prevent exactly the data-sharing the NSA is not supposed to be doing, Trump loves him the idea of the Imperial Presidency that just runs the country by diktat and wants even fewer limits, and here’s Michael Hayden* tut-tutting about what’s going on now that he’s safely out of office and can’t do a damn thing about it (and nobody’s supposed to notice that he’s now a bigwig in the shadowy security services advising field). What would Scalia say about this sort of executive order?

    *Hayden was the one that scoffed at the idea Trump could just order terrorists’ wives and children and families be killed in retaliation for terrorist acts on the grounds that the US military would disobey such an unlawful order. He maybe forgot that the CIA that he was the head of was in charge of some of the drones that killed innocent civilians and the CIA has no compunction about violating such niceties (not to mention that the NSA he was the head of had some rather imaginative ideas about what the law meant, too) and if Obama can shrug off killing innocent civilian children why can’t Trump?

    1. Maybe you might get disobedience if they knew it was a unlawful order. Does Hayden seriously suggest that the trigger puller is given the full set of facts beforehand? Of course not.

      1. Cdr,

        Spec Ops teams do assignations all the time in war zones-except because its a war zone, its not called assasination, except by us in casual conversation. Contractors for the CIA do the same, on and occasionally off the battlefield. We in the mil see bad guys, and are more than happy to go in harms way after a specific target, either to capture or kill, much as the famous Bin Ladin raid.

        This is a difference is manner, but not ethics, in comparison to sniping. Do it out of uniform and off the battlefield, its assassination. Do it under contract to the gov, and don’t doubt for a minute that many, many would do so at the drop of the hat for the paycheck and legal approval. I guarantee you, they think its cool. Maybe its a generation thing.

  5. “””””The Constitution gives Congress no authority to restrict immigration flows to protect the labor market, except to prohibit slavery.””

    The Constitution does not mention slavery, it talks about migration and importations as States now existing shall think proper to admit. And while importation does imply slavery, migration does not.

    “”””Article 1, Section 9 of constitution “””The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight””””””

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  7. Conman Blair’s cynical conspiracy to deceive the British people and let in 2million migrants against the rules: Explosive new biography lays ex-PM’s betrayal bare
    …But behind the scenes ministers were instructed to wave tens of thousands of asylum seekers into the UK under cover of their being ‘economic migrants’. Astonishingly, the minister Mr Blair put in charge of borders ruled against deporting failed claimants because it would be too ’emotional’.

    The main aim of allowing in millions of people was to make the country ‘see the benefit of a multicultural society’. The Blair government did not see its job as being to ‘control immigration’….

    1. The main aim of allowing in millions of people was to

      empower the forces that fight against freedom in their country.

      1. This should be interesting. We will find out first hand how well millions of “immigrants” works for England. The goal post moving might actually break the speed of sound. Of course, millions of “refugees” in Europe is already going so well, it is doubtful that reality will penetrate their emoting. “I am good, m’kay, because I like immigrants!”

  8. Labour’s ‘secret plan’ to lure migrants
    The release of a previously unseen document suggested that Labour’s migration policy over the past decade had been aimed not just at meeting the country’s economic needs, but also the Government’s “social objectives”.

    The paper said migration would “enhance economic growth” and made clear that trying to halt or reverse it could be “economically damaging”. But it also stated that immigration had general “benefits” and that a new policy framework was needed to “maximise” the contribution of migration to the Government’s wider social aims. …

  9. Police conspired to protect Rotherham child sex abusers
    Corrupt police and an influential politician fuelled a culture of impunity that allowed three brothers to “own” the town of Rotherham and abuse children until their crimes were exposed by The Times.

    One officer had sex with under-age girls, passed drugs to the sex-grooming gang and tipped them off when colleagues were searching for missing children, a court was told.

    Another helped to broker a deal in which one brother returned an abused girl to police after receiving an assurance that he “wouldn’t get done”…

    1. Sounds like England needs some woodchippers too.

      Vote Woodchipper 2016!

  10. The truth of the matter, says Dalmia, is that Scalia was a reasonable man who, at the end of the day, cared less about ideology and more about his judicial philosophy of textualism.

    Horseshit. You should be ashamed to write such unmitigated tripe.

    1. You should be ashamed to write such unmitigated tripe.

      Perhaps she should, but she never has before.

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  12. i always thought Dalmia was just an idiot, but she’s convinced me she’s delusional.

  13. A little better for Shikha here. She managed to be merely wrong multiple times, instead of bat shit insane.

    “Congress’ stated goal of closely guarding access to work authorization and preserving jobs for those lawfully in the country.” But this rationale cannot withstand the kind of strict originalist scrutiny that Scalia favored. The Constitution gives Congress no authority to restrict immigration flows to protect the labor market

    Commerce Clause:

    [The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

    *Work permits* for millions of foreign nationals would clearly fall into regulating commerce with foreign Nations. An actual constitutional use of of the Commerce Clause, for a change.

    [failing to enforce federal pot laws everywhere] But no one claims that this failure is a violation of the Constitution.

    Some people do. They would be wrong, but that’s only because the federal government has no constitutional authority to make pot illegal in the first place.

    If it were a constitutional power, failure to *take care* to enforce those laws would be unconstitutional.

    A president choosing to enforce or not enforce laws based on his whimsy is clearly a violation of the “take care” clause. It’s a violation of the rule of law. It’s banana republic time.

    Rule of Law in the toilet, and Reason writers cheering.

    1. A president choosing to enforce or not enforce laws based on his whimsy is clearly a violation of the “take care” clause.

      The republicans in congress should be taking to the media saying that they will perform their constitutional duty to approve Obama’s SCOTUS appointee when Obama starts enforcing and upholding the laws as is his own constitutional duty.

      1. The republicans in congress should be taking to the media saying that they will perform their constitutional duty to approve Obama’s SCOTUS appointee

        I like that. One thing that has been missing from the Right is the willingness to fight back. There has been a one sided rule of law, where the RIght obey the law, even while the Left uses any means necessary.

        Obviously, the Left will never stop if there are no consequences to violating the rule of law again and again and again.

        Fighting back *in kind*, and making the point *public and explicit*, would be a huge advance.

        A one sided armistice is surrender.
        A one sided rule of law is subjection.

        The price of liberty is *fighting back*.

  14. What’s up with using undocumented alien instead of illegal alien? Is a mugger an undocumented tax collector?

  15. This is what Scalia wrote:

    “[T]here 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?”

    Sounds like a “thumbs down” vote to me.

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