Scalia is partial towards the Constitution and liberty. Shame on him.
It has become clear that federal enforcement prioritiesin the sense of priorities based on the need to allocate scarce enforcement resourcesis 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 . . . [under specified conditions] then U. S. immigration officials have been directed to defe[r] action against such individual for a period of two years, subject to renewal.6 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 Congresss failure to pass the Administrations proposed revision of the Immigration Act.7 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.Justice Scalia's comments on President Obama's
The Court opinions 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 10seems 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 Executives refusal to enforce the Nations immigration laws?
. . . .
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 countrys 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 Arizonas estimated 400,000 illegal immigrantsincluding not just children but men and women under 30are now assured immunity from enforcement, and will be able to compete openly with Arizona citizens for employment.
Arizona has moved to protect its sovereigntynot 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. (Emphasis added, internal citations omitted.)
I wrote about the decision here, noting that the Majority Opinion also commented that the illegal alien problem Arizona faces is quite different and worse than faced by other states, yet the Executive Branch has chosen to focus its efforts elsewhere.