Scalia: AZ Decision Deprives Sovereign States From Excluding ‘People Who Have No Right to Be There’

By Penny Starr | June 25, 2012 | 6:21 PM EDT

Supreme Court Associate Justice Antonin Scalia. (AP Photo)

(CNSNews.com) – In his dissenting opinion on the constitutionality of Arizona’s anti-illegal immigration law (SB 1070), Supreme Court Justice Antonin Scalia decried the court’s 5-3 ruling, arguing that it effectively took away a sovereign state’s authority to exclude people who have no right to be in that state. The court struck down three of four provisions of the 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,” Scalia said in his opinion, backed by Justices Samuel Alito and Clarence Thomas.

“Neither the Constitution itself nor even any law passed by Congress supports this result,” Scalia said. “I dissent.”

The majority included Chief Justice John Roberts and Justices Anthony Kennedy, Steven Breyer, Ruth Bader Ginsburg and Sonia Sotomayor. Justice Elena Kagan did not hear the case because of her work with the Obama administration before her appointment to the bench in opposition of the law.

On the 5-3 vote, the court upheld the one portion of SB 1070 that allows law enforcement officers who have stopped individuals for investigation of a crime to seek the immigration status of that individual with federal authorities.

It struck down three portions of the law, including allowing warrantless arrests with “probable cause” of the commitment of a public offense; making it a state crime to fail to carry immigration documents; and forbidding illegal aliens from seeking or performing work.

Calling it an “assault on logic,” Scalia said the Arizona statute is consistent with the “ ‘cooperative’ system that Congress created, for state officials to arrest a removable alien, contact federal immigration authorities and follow their lead on what to do next.”

“And it is an assault on logic to say that identifying a removable alien and holding him for federal determination of whether he should be removed ‘violates the principle that the removal process is entrusted to the discretion of the federal Government,’” Scalia said.

Writing for the majority, Justice Kennedy said: "The national government has significant power to regulate immigration. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the state may not pursue policies that undermined federal law."

Scalia disagreed.

"If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign state," Scalia said.

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