June 2012 was a rough month for conservatives. Of course, on June 28, 2012, the Court decided NFIB v. Sebelius. I could write a book about that day. But three days earlier, the right suffered another momentous defeat--one that I think was somewhat pushed out of the headlines by NFIB. I was actually in the Court when Arizona v. United States was handed down. I had never seen Justice Scalia so irate.
Listen to his dissent from the bench. He was livid. Scalia even went on a rant about DACA, which had been announced a few days earlier.
After this case was argued and while it was under consideration, the Secretary of Home Land Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants. A husbanding of scarce enforcement resources can hardly be the justification for this since those resources will be eaten up by the considerable administrative cost of conducting the non-enforcement program which will require as many as 1.4 million background checks and by any rulings on request for dispensation. The President has said that the new program is "the right thing to do" in light of Congress' failure to pass the administration's proposed revision of the immigration laws. 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 federal immigration law that the President declines to enforce boggles the mind. The Court's opinion paints what it considers a looming specter of unutterable horror, "If Section 3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations." That seems to me not so horrible and even less looming, but there has come to pass and is with us today, the specter that Arizona and the states that supported, predicted, a federal government that does not want to enforce the immigration laws as written and leaves the states' borders unprotected against immigrants whom those laws would exclude. So the issue was a stark one.
