Initial Thoughts on the Supreme Court and S.B. 1070

Did the Obama Administration finally win a major victory before the Supreme Court this year?

Will the former Constitutional Law lecturer pull out a victory Thursday an Obama Care?

President Obama’s Justice Department has lost a series of cases this term, ranging from freedom of religion to private property rights.

Maybe they’ll pull out the big one on Thursday, but for now the Court’s decision was a win for the Administration and at least a short term defeat for Arizona and the American people.

The Court struck down 5-3 three minor, but controversial, provisions of S.B. 1070, but upheld 8-0 the most critical provision of the Act – the provision that provides that if a law enforcement officer otherwise has probable cause to arrest a person, then the officer can request proof of legal residence in the United States. If the suspect is here illegally, then the agency is to contact ICE (Immigration and Customs Enforcement) to take further action, the “Show me your papers” provision.

The response of the Obama Administration was to engage in nullification and intimidation. Secretary Janet Napolitano of Homeland Security announced shortly after the decision that ICE will not respond to calls from Arizona unless it involves a felony. The Administration suspended the agreement between the federal government and Arizona which provided for cooperation on immigration matters through the federal deputizing of local law enforcement officers to enforce the immigration laws, the 287(G) program. The Administration has essentially said “There is no Arizona.”

Remember just a short time ago the Administration announced it would adopt unilaterally aspects of the Dream Act and not deport students between the ages of 16 and 30. It nullified part of the immigration laws of the United States.

More than nullification is involved though. The Justice Department announced the creation of a 800 Hotline or members of the public to report suspected rights violations by Arizona law enforcement officials regarding S.B. 1070. This is a blatant attempt to intimidate Arizona law enforcement officials from enforcing the Arizona law on pain of being criminally prosecuted by an overzealous Civil Rights Division of the Justice Department.

The new immigration policy as of Monday night is "Catch and Release." Arizona will catch and the Feds will release.

Note, the Justice Department is willing to proceed against law enforcement officials enforcing the law, but has filed no prosecutions about Fast and Furious officials running guns from Arizona to Mexican cartels. Nor is the Agency willing to comply with Congressional subpoenas asking for explanations of how or why the Agency misrepresented the facts to Congress.

Be sure to read Justice Scalia’s blistering dissent; he was in rare form, basically calling out the President.

On a different note, the 5:3 decision is interesting. Justice Kagan recused herself, leaving 8 voting members of the Court. If we assume Chief Justice Roberts would normally have joined Justices Scalia, Alito, and Thomas, then the vote would have been 4–4. A tie vote results in a summary affirmation of the lower court’s decision. The Ninth Circuit tossed the entire Arizona statute. Therefore, even the “Show me your papers” would fail.

Just a theory.