In a stinging, 22-page dissent to Monday's decision striking down most of Arizona's tough anti-illegal immigration law, Justice Antonin Scalia criticized President Barack Obama's announcement earlier this month that he would stay the deportation of young illegal immigrants and suggested that the federal government does not want to enforce its immigration laws.
"The president said at a news conference that the new program is 'the right thing to do' in light of Congress's failure to pass the administration's proposed revision of the Immigration Act," Scalia, a Reagan appointee, wrote in his dissent. "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."
Scalia went on to write:
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.
Scalia also repeatedly referenced Obama's policy of prosecutorial discretion, which directs Immigration and Customs Enforcement agents to prioritize deporting the illegal immigrants who are frequent border crossers, have committed crimes, or recently entered the country illegally. The Obama administration has deported a record number of illegal immigrants, but its prosecutorial discretion policy still draws the ire of illegal immigration hawks.
Scalia directly referred to Obama's immigration enforcement policy as "lax" at one point.
"Must Arizona's ability to protect its borders yield to the reality that Congress has provided inadequate funding for federal enforcement—or, even worse, to the executive's unwise targeting of that funding?" Scalia asked. Later, he added: "What I do fear—and what Arizona and the States that support it fear—is that 'federal policies' of nonenforcement will leave the States helpless before those evil effects of illegal immigration."
The federal government "does not want to enforce the immigration laws as written, and leaves the States' borders unprotected against immigrants whom those laws would exclude," Scalia alleged.
Arizona's entire immigration law should be upheld, Scalia wrote, because it is "entitled" to make its own immigration policy. At one point, he cites the fact that before the Civil War, Southern states could exclude free blacks from their borders to support the idea that states should be able to set their own immigration policies.
The majority of the justices, including Chief Justice John Roberts, ruled that most of Arizona's law is unconstitutional, save for the provision that allows police officers to ask about immigration status during stops.