SCOTUS Week

Let's consider this an open thread on the key rulings that the SCOTUS will hand down / has handed down this week.  As always, don't expect anything profound from me.  But I am intrigued by the dissents in the Arizona S.B. 1070 ruling handed down today.

Justice Alito argues that a couple of the sections at issue implicate state police powers, so there has to be clear and manifest intent of Congress to find preemption.  Justice Alito attacks the Government's arguments as "unprecedented," but nothing that I would call partisan.  So alright.  Reasonable minds can differ.  But ok.

Justice Thomas thinks that you can only compare the words of the state statute and the federal statute to see if there is actual conflict.  Justice Thomas seems to think that States will not be crafty and that Congress has all the time in the world to review every single state statute that may conflict with federal law, then change said federal law to ensure that blah blah blah.  This is outrageous on its face and laughable.  Of course, that's the idea.  On paper, the philosophy sounds simple and straight forward.  So simple, that anyone with an 8th grade education can appreciate it.  But in reality, it's impossible to administer.  Even more impossible to ever find that the federal laws preempt any state laws.  In the end, "[s]ay what you will about the tenets of [Justice Thomas], at least it's an ethos."

Which brings us to Justice Scalia.  I just don't understand his argument.  He seems to treat states as full sovereigns not bound by the supremacy clause.  The gist, if I understand it, is that for 100 years, states were able to exclude all sorts of people, and they should continue to do so now.  It's almost like 200 years of history, including a Civil War that settled the question of the scope of state sovereignty, do not exist in the world of Justice Scalia.  Justice Scalia firmly believes that this part of the state's core sovereignty, and as long as the states are admitting those admissible under federal law and excluding those excluded by federal law, everything is Kosher.  Certainly any jurisprudence about Congress's plenary power over immigration is a footnote at best--merely a part of the "so-called field preemption."  This is a remarkable distortion of the relationship of the states to the federal government.  How is it possible that Justice Scalia can look at Art. I, sec. 9 (the clause precluding Congress from prohibiting the importation of slaves for 20 years) with a straight face and claim that it manifests a state's power to exclude.   

Justice Scalia doesn't stop there.  For example, he asks, rhetorically, "Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?  A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding? Today’s judgment surely fails that test."  Well, no.  That's not a good way of answering the question.  Pragmatically speaking, would the States have entered the Union if the Constitution contained the Court's holding and the States were aware of the advances in transportation and human mobility that would unfold in the next 220 years?  If we want to take this to the rhetorical extreme, we can also ask, would states have joined the Union without the 3/5 compromise?  No?  Oh well if not for the 13th and 14th Amendments, we should bring that back as well.  This is, again, a remarkable bait and switch that ignores the most recent 100 years of history and jurisprudence while embracing language in the Articles of Confederation.  It's nonsense.  The rest of the dissent takes hacks at the President's recent announcement on deferred action (though curiously, while attacking the resources that would be required to implement the President's policy, Justice Scalia is silent as to the resources that would otherwise be required to deport the aliens that fall under the umbrella of the policy).  Like I said, I just don't get it.

UPDATE 1:  When I first drafted this post, I included a sentence wondering if Scalia's dissent meant that he did not get his way in the ACA rulings.  Sounds like others are thinking along the same lines. 

WaPo has a great story on Bryan Stevenson, the NYU law professor who argued the juvenile life in prison cases.  Stevenson was the speaker for my class graduation.  An inspired selection, especially in hindsight.

UPDATE 2:  Well, here it is.  Initial thoughts listening to NPR on the way in to work:  Roberts is a genius.  There are a lot of reasons for that statement, but I believe, 10, 20, 50 years from now, his opinion on the Commerce Clause will be the equivalent of Justice Jackson's concurrence in Youngstown.  If you're a libertarian aching to claw back Congress's commerce clause authority to pre-New Deal days, this is your opinion.  In just a few pages, Roberts (1) establishes limits on Wickard ("The farmer in Wickard was at least actively engaged in the production of wheat, and the Government could regulate that activity because of its effect on commerce. The Government’s theory here would effectively override that limitation, by establishing that individuals may be regulated under the Commerce Clause whenever enough of them are not doing something the Government would have them do") (Opinion of Roberts, C.J., Slip Op. at 22); (2) takes the "broccoli" argument and reshapes it into a coherent legal argument about the government regulating diet based on the increased cost on health care (id. at 22-23); (3) establishes that the "necessary and proper clause" requires the act to be both necessary as well as proper, something previously left to the best guesses of law professors.  ("Even if the individual mandate is 'necessary' to the Act’s insurance reforms, such an expansion of federal power is not a 'proper' means for making those reforms effective.") (id. at 30).