one suspects that Ellsworth tends to be left out of the picture because he wanted a less strict separation between church and state than did Madison.
Here I continue my thoughts on Arizona immigration case. For Part I of this post, see here.
5. Justice Scalia also criticizes the majority and the Obama Administration for arguing that state enforcement of federal immigration laws is preempted because it conflicts with executive branch priorities. President Obama’s new immigration policy is based on the idea that the federal government has limited resources to enforce the immigration laws. Arizona seeks to help them enforce the law, with an offer that calls the Administration’s bluff. The Administration is saying: “No thanks, we don’t want the help. We like the discretion.”
Justice Scalia writes: “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.” I am sympathetic to Scalia here, although the Administration could be right if the Congress had expressed a preference for executive branch discretion and against state assistance.
6. Interestingly, Justice Thomas did not join Scalia’s opinion, even though Thomas largely agrees with Scalia on the preemption questions. One interesting possibility is that Thomas did not join Scalia because Thomas does not agree that the federal government has, as an original matter, the power to regulate immigration as part of its inherent sovereignty.
7. Finally, Justice Alito writes separately from both Thomas and Scalia. Part of the reason is that Alito has a different bottom line. Alito believes that Section 3 of the Arizona Act, which provides that an alien who willfully fails “to complete or carry an alien registration document” in violation of federal law is guilty of a misdemeanor under state law. Justice Alito’s view is that the Supreme Court’s 1941 decision in Hines v. Davidowitz required this conclusion. According to Alito, Hines had said that Congress had enacted a complete scheme of alien registration and therefore state laws could neither interfere with or complement that scheme.
Justice Alito’s opinion is written in the language of precedent and institutionalism that we have come to expect from him. He seems happy to avoid Justice Scalia’s originalism and to continue the development of his own distinctive style of reasoning.