“IN TRUE JUDICIAL ACTIVIST FORM”
by KrisAnne Hall, blogging at www.KrisAnneHall.com
(Jun. 26, 2012) — Never has a ruling by the Supreme Court been more aptly titled as an “Opinion,” because that is exactly what Justice Kennedy and his cohorts have delivered in Arizona v. United States. It is nothing more than an open display of judicial activism. The majority opinion is not a legal explanation on the Constitutionality of Arizona’s laws, but is an ideological dissertation on this current administration’s view of immigration.
Not only is this ruling devoid of any appeal to the Constitution, it is very dangerous. It is an aberration of fundamental Constitutional principles and a brazen assault on state sovereignty! Chiefly, Kennedy takes the Supremacy clause of the Constitution, which declares that the Constitution is the supreme law of the land, and translates that principle into the supremacy of the Federal government over the states. There couldn’t be anything more contrary to our founders’ intent. Let me repeat: this opinion is a monumental assault on the sovereignty of the states.
Article I section 8 clause 4 of the Constitution states that Congress has the power [t]o establish an uniform rule of naturalization. The purpose of the federal government in the case of immigration, as Justice Kennedy appropriately acknowledges is “to be a single voice of the nation for foreign relations.”
This external focus is in line with James Madison’s directive that: “The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace negotiation, and foreign commerce…”
Indeed, we must have a single rule of law regarding immigration, else foreign nations will never know what to expect from state to state. However, this is where Kennedy’s constitutional understanding ends. He continually remarks throughout this opinion, that the states are not only not allowed, but not capable of enforcing the laws that the federal government codifies. What is his authority for this opinion? Not the Constitution itself and certainly not the founders.
Kennedy does not appeal to the Constitution as the standard, but rather the “broad discretion of immigration officers” as the determining factor of how immigration policy should be devised and carried out. He says, “Removal is a civil matter, and one of its principal features is the broad discretion exercised by immigration officials, who must decide whether to pursue removal at all.” The standard for deportation of an illegal immigrant is NOT the law, according to Kennedy, but an arbitrary determination of the Department of Homeland Security, which we all know will reflect Obama’s recent declaration.
Kennedy suggests that the states must submit to lawlessness based upon the whim of federal officials, declaring,“Were §3 to come into force, the State would have the power to bring criminal charges against individuals for violating a federal law even in circumstances where federal officials in charge of the comprehensive scheme determine that prosecution would frustrate federal policies.”
How does Kennedy justify this arbitrary determination? “This state authority could be exercised without any input from the Federal Government about whether an arrest is warranted in a particular case. This would allow the State to achieve its own immigration policy. The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed.”
According to Kennedy, enforcement of immigration laws are nothing more than a tool to harass illegal aliens. This is a direct reflection of the policies of the President and not the law established by Congress through the powers delegated by the Constitution. Simply put, the states must accept violations of the law if the whim of the sovereign decides it is not in their comprehensive scheme to enforce the law. It is the whim of the sovereign to decide who gets the privilege of citizenship, not the supreme law of the land.
Kennedy further opines that the states are apparently not smart enough to know when to deport and not to deport: “There are significant complexities involved in enforcing federal immigration law, including the determination whether a person is removable…By authorizing state officers to decide whether an alien should be detained for being removable, §6 violates the principle that the removal process is entrusted to the discretion of the Federal Government.”
It should be apparent by the Federal Government’s refusal to enforce the law, that it is, in fact, the states that have better sense about immigration laws. The federal government is not interested in following the law of the land, they are only interested in circumventing it to achieve their ideology and now the Supreme Court is aiding and abetting this lawless assault upon Liberty. I will repeat it, if you have to circumvent the Constitution to do your job, YOU are the criminal.
In true judicial activist form, Kennedy couldn’t resist giving the liberal agenda for immigration as justification for arbitrary enforcement of federal law. Nearly quoting the president’s position on this law, Kennedy states:
“Immigration policy shapes the destiny of the Nation. These naturalization ceremonies bring together men and women of different origins who now share a common destiny. They swear a common oath to renounce fidelity to foreign princes, to defend the Constitution, and to bear arms on behalf of the country when required by law. The history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here.”
I ask you, what does this have to do with the Constitutionality of these laws? I believe the key to understanding this opinion lies in knowing the President’s recent determination that DHS will not be enforcing immigration laws and for the court to rule otherwise would allow the states themselves to nullify the president’s order. Here it is, in Kennedy’s own words: “If §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations, “diminish[ing] the [Federal Government]’s control over enforcement.”
Ignoring nearly two centuries of the individual state’s role in making these decisions (as outlined cogently in Scalia’s dissent), Kennedy cuts through one of the pillars of the Republic, state sovereignty, like a buzzsaw. He tramples the separation of powers and wholeheartedly supports just one more example of the executive branch stealing power from Congress. Any hopes that Congress will do anything about it?
In a statement that can only be classified as patronizing, Kennedy throws the final salt in the wound, by declaring, in spite of the states “frustrations” with enforcement, the federal government is the King, and the states must subject themselves to its authority. “Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law.”
The “victory” claimed by some is no victory at all. The Supreme Court did uphold the ability of law enforcement officers to contact Immigration and Customs Enforcement (ICE) when they have pulled over someone to verify whether that person is an illegal alien. Big deal! Justice Kennedy has informed us:
“As a general rule, it is not a crime for a removable alien to remain present in the United States. See INS v. Lopez Mendoza, 468 U. S. 1032, 1038 (1984).” It’s not illegal to be illegal. Really?
Since being here illegally is not a crime according to the federal government, even if law enforcement is informed that a person is illegally present, that officer will still have to let them go. The Supreme Court has said any other action by the state is an infringement upon the federal government’s power. According to Kennedy, state officers are not even allowed to detain illegal aliens: “By authorizing state officers to decide whether an alien should be detained for being removable, §6 violates the principle that the removal process is entrusted to the discretion of the Federal Government.”
According to Kennedy, the sole authority to determine whether an illegal alien is to be detained or deported rests in the Attorney General: “[T]he Attorney General can exercise discretion to issue a warrant for an alien’s arrest and detention “pending a decision on whether the alien is to be removed from the United States…the Attorney General will issue a warrant.” Kennedy then reminds everyone that all who are enforcing these laws are “subject to the Attorney General’s direction and supervision.” In what version of the Constitution did he find this?
Once again, it is NOT about the law, it’s about the discretion of the Federal Government and the Federal Government is King. This court has not only taken the precedent and placed it above the founders’ understanding of the Constitution, but now regulation applied by arbitrary discretion is also elevated above our foundational principles. This supports the hopes of this current administration to further create a totalitarian government led by King Barry I.
In one decision, the Supreme Court has told every state, they do not have the authority to protect themselves; they must submit to the supervisory authority of the Federal Government and the Supreme Court supports the president’s recent directive to DHS.
Let’s be clear. The Constitution says the federal government is supposed to establish standards so that foreign nations will not have to deal with 50 different rules. Yes, the states are bound by these standards pursuant to the supremacy clause. However, the power to create standards does not infer the ability to be the sole enforcer. Once the standards are set, then the states are bound to enforce those laws pursuant to those standards. The only time the federal government is allowed to be involved is when the states are not following those standards! This power has now been expanded from the power to create regulations to the power of sole enforcer, and Justice Kennedy has now declared that the sovereign states have no ability to enforce these laws, and therefore have no right to protect their own territories. It’s as if the US government, via the Supreme Court, has practically expelled Arizona from the Union – since, if the Federal government will not enforce the law and Arizona is NOT ALLOWED to enforce the law – then Arizona is bare and unprotected.
One need only read Justice Scalia’s dissent to discover the correct interpretation.
“ The most important point is that, as we have discussed, 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. Today’s opinion, approving virtually all of the Ninth Circuit’s injunction against enforcement of the four challenged provisions of Arizona’s law, deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there. Neither the Constitution itself nor even any law passed by Congress supports this result. I dissent.”
As do I, Justice Scalia. As do I.
Sharon Rondeau has operated The Post & Email since April 2010, focusing on the Obama birth certificate investigation and other government corruption news. She has reported prolifically on constitutional violations within Tennessee’s prison and judicial systems.