The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
June 2012 was a rough month for conservatives. Of course, on June 28, 2012, the Court decided NFIB v. Sebelius. I could write a book about that day. But three days earlier, the right suffered another momentous defeat--one that I think was somewhat pushed out of the headlines by NFIB. I was actually in the Court when Arizona v. United States was handed down. I had never seen Justice Scalia so irate.
Listen to his dissent from the bench. He was livid. Scalia even went on a rant about DACA, which had been announced a few days earlier.
After this case was argued and while it was under consideration, the Secretary of Home Land Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants. A husbanding of scarce enforcement resources can hardly be the justification for this since those resources will be eaten up by the considerable administrative cost of conducting the non-enforcement program which will require as many as 1.4 million background checks and by any rulings on request for dispensation. The President has said that the new program is "the right thing to do" in light of Congress' failure to pass the administration's proposed revision of the immigration laws. 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 federal immigration law that the President declines to enforce boggles the mind. The Court's opinion paints what it considers a looming specter of unutterable horror, "If Section 3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations." That 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 supported, 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 was a stark one.
I used Scalia's words to write an imagined concurrence in Texas v. United States, the DAPA case. DACA recently celebrated its tenth anniversary; The DACA Decade would make a good title for a book I plan to write.
And Scalia compared illegal immigration to an "invasion" and a "siege."
As is often the case, discussions of the dry legalities, that are the proper object of our attention, suppresses the very human realities that gave rise to this 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 simply unwilling to do so. Arizona has moved to protect its sovereignty, not in contradiction of federal law, but in complete compliance with it. The laws under challenge 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. For these reasons, I dissent.
Now, the Court may get another go at that precedent. Texas Governor Greg Abbot ordered the Texas national guard and state police to detain aliens who illegally entered the country, and to return them to the border. But wouldn't that action violate Arizona? Not quite. The executive order quotes this passage of Justice Kennedy's majority opinion:
However the law is interpreted, if §2(B) only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive pre- emption—at least absent some showing that it has other consequences that are adverse to federal law and its objectives. There is no need in this case to address whether reasonable suspicion of illegal entry or another immigration crime would be a legitimate basis for prolonging a detention, or whether this too would be preempted by federal law. See, e.g., United States v. Di Re, 332 U.S. 581, 589 (1948) (authority of state officers to make arrests for federal crimes is, absent federal statutory instruction, a matter of state law); Gonzales v. Peoria, 722 F.2d 468, 475–476 (CA9 1983) (concluding that Arizona officers have authority to enforce the criminal provisions of federal immigration law), overruled on other grounds in Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (CA9 1999).
Arizona left open the question of whether Texas can detain aliens who violated federal immigration law. The Court could uphold Abbott's order without overruling Arizona. But this holding would undermine the weight of Arizona.
Justice Kennedy liked to leave lots of issues open, to be decided another day, if ever. For example, Justice Kennedy declined to overrule Washington v. Glucksberg in Obergefell. Instead, he scribbled a feeble distinction on that little slip of paper inside a fortune cookie. And, wouldn't you know it, Glucksberg was used to overrule Roe. I think litigators can spend the next decade picking up all of the issues that Justice Kennedy declined to resolve--just search Westlaw for "no need to decide" or "we do not need to address" or "we decline to resolve."