By Former State Senator Karen Johnson

Many people are unhappy about the June 25th Court decision on Arizona’s controversial immigration law (SB1070) and the fact that the Court struck down three out of the four provisions of the bill that had been challenged. Now, if this were a game of tennis or baseball, losing three out of four would be a near defeat. But the ruling on SB1070 is not about sports, and a mere count of the provisions the court affirmed or struck down is not a measure of the success or failure of SB1070. The court’s ruling was, in fact, a great victory. There is no cause for mourning over SB1070.

First, it must be understood that SB1070 was a long, complex piece of legislation that ran for 19 pages and involved 10 sections of statute, some of which had multiple provisions in subsections. Some very important sections of SB1070 were never challenged, such as the sections on human smuggling and employee sanctions. Attempts were made early on to challenge Section 2 (a prohibition against “sanctuary cities”) and Section 5(a) (streetside solicitation by day workers). But these attempts to thwart SB1070 were fended off in early court proceedings before the suit arrived at the Supreme Court. So, of the 10 sections to the bill, a full six of them, many with multiple provisions, were either in effect from the start or had been exonerated by the time the challenge arrived at the doorsteps of the Supreme Court. That means that 60 percent of SB1070 had already been cleared before June 25. What remained for review by the Supreme Court were all of Sections 3 and 6, and a single piece each of Sections 2 and 5. Section 2(b) was upheld in the June 25th ruling, so comes off the table (70 percent of SB1070′s 10 sections now prevailing.). That leaves three items.

Sections 3 and 6 each address a single provision of law, and each were struck down by the Court. But Section 3 isn’t absolutely required in order for the states to arrest and detain illegal immigrants; it was just an additional tool. Nice to have, but not a key provision of SB1070. Section 6 was somewhat redundant because states already have authority for that provision and can work around the court’s decision. So, losing Sections 3 and 6 is not a fatal blow to SB1070.

Lastly, Section 5 had seven different provisions in it, but only one was challenged. The Court struck it down, so a mere one-seventh of Section 5 was invalidated by the June 25th ruling, while the remaining six-sevenths stood. So, in the end, three small provisions that were not terribly crucial were struck down by the court. In contrast, the most significant provision of SB1070, the one which allows police officers making traffic stops to check for residency status, was upheld. This provision was the heart of SB1070. It was by far the most important part of the bill, the most important item under judicial review, and the one to which the Justices gave the most attention during oral arguments. And that section was upheld unanimously by all eight Justices.

Despite SB1070′s near perfect score after two years of attacks by the Left, and despite the puny success of the opponents who were so enraged about the passage of the bill, the media blathered incoherently the day of the decision about how the court “gutted” the bill and overturned nearly all of it. It’s hard to know whether such trash reporting merely reflects the usual incompetence of the mainstream media or is an overt attempt to spin the story to cover up a very public defeat of the radical Left. The anti-American Hispanic groups, the Chamber of Commerce, and various other open borders advocates spent two years and a lot of ink trying to kill SB1070 without success. Considering that the lawsuit against SB1070 was brought by the current administration in Washington, then the administration shares with its Leftist friends the sting of defeat in the face of the court’s ruling. Our current leaders forsook the Constitution long ago. The court ruling on SB1070 is a stern reminder to them that even kings (and presidents) are not above the rule of law.

Among the most satisfying aspects of the June 25th ruling are the comments and support offered in the dissenting opinion of Justice Scalia. Scalia voted to uphold all four provisions of SB1070 that were under review, and he expresses an articulate defense of the law in his dissent. “Scalia eviscerates Kennedy’s explanation” for the majority, said Arizona Senate Majority Leader Andy Biggs, an attorney who helped to pass SB1070 in 2010 and reviewed the opinion as soon as it appeared on the Court’s website. Basically, reports Biggs, Scalia says that Kennedy’s legal logic was faulty, and that Justice Kennedy misunderstood aspects ofArizona law, a failure which colored his opinion.

While Scalia’s dissent is a minority opinion, it will likely be embraced by patriots because it gives hope to those who love our country and want to protect it from the malicious efforts of those who consistently tear away at the Constitution. Here are a few of Scalia’s comments in his dissent:

“There is no federal law prohibiting the States’ sovereign power to exclude [illegal aliens].”[1]

“… the Federal Government must live with the inconvenient fact that it is a Union of independent States, who have their own sovereign powers.”[2]

“… the States have the right to protect their borders against foreign nationals, just as they have the right to execute foreign nationals for murder.”[3]

“Arizona is entitled to have ‘its own immigration policy’ ­ including a more rigorous enforcement policy ­ so so long as that does not conflict with federal law.”[4]

“… there is no reason Arizona cannot make it a state crime for … any illegal alien … to remain in Arizona.”[5]

“In my view, the State can go further … and punish them for their unlawful entry and presence in Arizona.”[6]

“The Government complains that state officials might not heed ‘federal priorities’. Indeed they might not, particularly if those priorities include willful blindness or deliberate inattention to the presence of removable aliens in Arizona.”[7]

“The State has the sovereign power to protect its borders more rigorously if it wishes ….”[8]

“It is beyond question that a State may make a violation of federal law a violation of state law as well.”[9]

Scalia is scathing in his denunciation of the majority opinion:

“But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of [federal law] that the President declines to enforce boggles the mind.”[10]

“What I do fear ­ and what Arizona and the States that suppport it fear ­ is that ‘federal policies’ of non-enfforcement will leave the States helpless before those evil effects of illegal immigration that the Court’s opinion dutifully recites in its prologue but leaves unremedied in its disposition.”[11]

Scalia’s scorn for the majority ruling condenses itself into a question about the Constitutional Convention in 1787: “Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding?”[12]

His answer: “The delegates to the Grand Convention would have rushed to the exits.”[13]

Scalia exposes the main obstacle the states face in their struggle to contain illegal immigration: “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.”[14]

And he raises the question that needs to be faced by everyone who cares about our freedom:. “Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?”[15]

The answer to that question, of course, is no. Our nation was built on the concept of “popular sovereignty,” meaning that power rests in individuals, not government. We confer certain limited powers on government for the purpose of maintaining an orderly society, not for the purpose of stealing our freedom. The Founders recognized the dangers of an all-powerful, overbearing federal government. They did not leave the states or individual citizens at the mercy of the Executive Branch.

But what is the remedy, then, for a government that refuses to obey the laws and the Constitution and does everything it can to thwart state efforts to do so? Senator Biggs calls the current leaders in Washington ”a rogue administration. They are acting outside the scope of their Constitutional authority.”

In times past, the remedy for rogue government was almost always, of necessity, an overthrow. But in a country like ours, that honors the rule of law, revolution isn’t the first option. The answer is (what else?): the rule of law! Even the most clever despot cannot outwit the rule of law. It is probably not possible to overstress the importance of this principle. Dallin H. Oaks, former Justice of the Utah Supreme Court, has said that, “All the blessings enjoyed under the United States Constitution are dependent upon the rule of law …. The rule of law is the basis of liberty.”[16] If that is the case, and I believe it is, then the remedy for a lawless government is to pursue the rule of law vigorously. The answer lies in the state legislatures, which are, after all, supposed to be stronger than the federal government anyway. SB1070 is a state assertion of the rule of law. Many other options exist, such as nullification and rejection of the federal money that makes the states slaves to federal mandates. Are we at the mercy of the Federal Government? Not on your life. Not unless the state legislatures choose to make us so.

The Supreme Court ruling on SB1070 was a step toward reestablishing respect for the rule of law. Our current Chief Executive (who has no respect whatsoever for the rule of law) has already announced that he will oppose efforts by Arizona to implement the provisions of SB1070 and will instruct ICE officials to refuse to cooperate with local law enforcement officers who apprehend illegal aliens. Arizona will need to stand up to such outrageous lawlessness on the part of the federal government.

The commander in chief is setting up a power struggle between the states and Washington, a national staring contest, so to speak, a giant game of Chicken. Whoever blinks first loses. But liberty never backs down. Freedom never loses in the long run. The pages of history are filled with tales of tyrants who went too far.[17] Tyrants always lose. Scalia closes his dissent with a blunt stand on behalf of state sovereignty that should give all states the courage to assert themselves and not back down to the federal government:

“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 completee 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.”[18]

Hurray for Justice Scalia! Hurray for the Constitution! Hurray for SB1070!

(c) 2012 Karen Johnson - All Rights Reserved

Footnotes:

1. Supreme Court decision on SB1070. Arizona et al v. United States, No. 11-182., Scalia Dissent, p. 7. [Link]
2. Ibid., p. 8. [Link]
3. Ibid., p. 8. [Link]
4. Ibid., p. 12. [Link]
5. Ibid., p. 12. [Link]
6. Ibid., p. 13. [Link]
7. Ibid., p. 13. [Link]
8. Ibid., p. 13. [Link]
9. Ibid., p. 14. [Link]
10. Ibid., p. 21. [Link]
11. Ibid., p. 16. [Link]
12. Ibid., p. 21. [Link]
13. Ibid., p. 22. [Link]
14. Ibid., p. 21 [Link]
15. Ibid., p. 21. [Link]
16. Dallin H. Oaks, former Justice of the Utah Supreme Court, “The Divinely Inspired Constitution,” Ensign, February, 1992.
17. See “The Utah Compact and the Rule of Law,” by Karen Johnson, Sept. 14, 2011.
18. Supreme Court decision on SB1070. Arizona et al v. United States, No. 11-182., Scalia Dissent, p. 22.