The Rights of States

July 3, 2012

It’s difficult to gauge the ultimate impact of this past week’s Supreme Court decision invalidating much of Arizona’s landmark immigration enforcement law, with the exception of Section 2(b), i.e. the clause empowering local police to ascertain someone’s immigration status if  ”reasonable suspicion” exists when he or she is detained.  Even this seeming bright spot is obscured by Justice Kennedy’s muddled opinion, which seems to invite future litigation by the usual suspects, who will have their cases heard before the same judge who has thwarted the implementation of the bulk of SB 1070 for the past two years.

Heather Mac Donald, of the Manhattan Institute, wrote an incisive analysis of the decision for National Review Online, which merits reading by anyone who marveled at some of the flawed reasoning involved in overruling a state law that mirrors federal law in most regards. Her exploration of Justice Scalia’s bold dissent-which has earned universal scorn among the commentariat-is especially compelling. Because the current administration has invested its political capital in administrative amnesty and abandonment of immigration enforcement, it has fallen upon the states to do the work which the Supreme Court has deemed the exclusive province of the federal government. Since the current POTUS believes he must bribe Hispanic voters-who presumably favor amnesty-in order for he and his party to survive politically, he will use the perquisites of the  imperial presidency in order to thwart states-such as Arizona-which have the temerity to defend the territorial integrity of their borders.

That’s why the prospect of states reasserting their sovereignty-described so eloquently in Justice Scalia’s dissent-is so appealing. I disagree with the suggestion by some in the immigration reform movement that the Supreme Court’s refusal to preempt local and state enforcement constitutes a legal victory. Like Roy Beck, I believe that the most efficacious means of deterring illegal immigration-and of forcing illegal aliens currently living here to repatriate themselves-is cutting off access to jobs. Notwithstanding the majority’s decision to nix that portion of SB 1070 which criminalized illegal aliens seeking work, the fact that  during its last term the Supreme Court decided to uphold the Arizona Legal Workers’ Act indicates that there are tools available to counteract the damage done by the Obama administration’s quest for perpetual supplicants. 

Even so, the courts’ decision to vitiate most of Arizona’s enforcement mechanisms leaves the ball in the court of the Obama administration, which has made its intentions with regard to this issue more than clear. Combined with its decision to wage class war against American citizens, the amount of leeway enjoyed by those who would enforce the laws American bureaucrats won’t has been reduced significantly. However, if individual states like Arizona begin to assert their rights under the Constitution-a path advocated by one of today’s most articulate advocates of liberty-then the power exercised by open borders proponents, and consequently, the damage inflicted upon Americans, can be mitigated. Although the prospect of nullification might appear dramatic in nature, it is a response less outrageous than the excesses of an unaccountable federal government with blood on its hands. Plus, the precedent has already been established. 

We shouldn’t pin our hopes on an insipid standard-bearer for a national party that has equivocated and vacillated on one of the most important issues of our time. Nor should we  rely upon a federal government that has repeatedly betrayed a beleaguered American public. We need to trust ourselves enough to realize that the solution to this problem, like so many others, rests in our hands and in the wisdom of this country’s founders. A message particularly resonant on the 136th anniversary of the proclamation of the world’s most revolutionary charter of freedom.

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