Editor's note: This contribution by the late journalist I.F. Stone first appeared in our January 1975 magazine.
The Supreme Court struck down almost all of SB 1070, Arizona’s noxious anti-immigrant law, a decision that steamed Justice Antonin Scalia.
The Court said that the state cannot make it a misdemeanor for an immigrant not to comply with federal registration.
It said that the state cannot make it a misdemeanor for an undocumented worker to look for work or engage in employment.
It said the state also cannot arrest someone without a warrant simply because the officer “has probable cause to believe” that the person has violated federal immigration law.
“The state may not pursue policies that undermine federal law,” Justice Kennedy wrote for the 5-3 majority, which surprisingly included Chief Justice Roberts.
Unanimously, the Court left standing, at least for the moment, the part of the law that requires officers to inquire about the immigration status of those they arrest, though it suggested that future challenges to this section might succeed.
Scalia delivered a scorching dissent against most of the decision.
Touring U.S. history from the founding Convention onward, he repeatedly stressed “the States’ sovereign interest in protecting their borders,” and their “sovereign prerogative to do so.”
The only time states can’t pass their own laws regarding immigration, he said, is when they contradict federal law, which isn’t the case here, he argued.
“The most important point is that . . . Arizona is entitled to have ‘its own immigration policy’—including a more rigorous enforcement policy—so long as that does not conflict with federal law,” he wrote.
Scalia was also scornful of Congress and the Obama Administration for not providing sufficient funding to enforce the immigration laws.
And while he was at it, he swerved to run down Obama’s recent decision on letting many young undocumented immigrants remain in the country.
“That Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind,” he wrote.
Scalia also described the immigration problem in the worst possible light, caricaturing undocumented immigrants not only as a drain on resources but as dangerous.
“Arizona bears the brunt of the country’s illegal immigration problem,” he wrote. “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.”
He concluded tartly: “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.”
If you liked this story by Matthew Rothschild, the editor of The Progressive magazine, check out his story “Build Local Progressive Councils."
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