Scalia's dissenting opinion made clear that he believed the majority's decision was fundamentally wrong and opposed a kind of immigration federalism in which states act in their "sovereign" capacity.

"As a sovereign," Scalia opined, "Arizona has the inherent power to exclude persons from its territory, subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress."

This is the view of both Pearce and Brewer. In fact, when Brewer did her impersonation of President George W. Bush's premature "mission accomplished" speech aboard the USS Abraham Lincoln in 2003, she also called the court's 1070 ruling a "victory for the Tenth Amendment," the amendment that essentially guarantees the principle of federalism, a byword for "states' rights" among Teabaggers.

But Scalia did not find the majority's decision to be a win for the Tenth Amendment.

He wrote: "Today's decision — 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."

Sure, the majority allowed section 2(b) to survive, and that is unfortunate, particularly if you live in Arizona or are passing through and happen to speak English with a Spanish accent (or speak no English at all), or if your skin boasts more melanin than that of the average Anglo.

However, the majority is allowing the injunction to be lifted on 1070 only on the very narrow basis that it does not violate the federal immigration scheme and will only involve a phone call to U.S. Immigration and Customs Enforcement to determine an individual's immigration status during a lawful stop.

That's a phone call many officers already have been making voluntarily, by the way. The difference with 1070 is that such an inquiry will be mandatory, with the possible penalty being lawsuits filed by ticked-off nativists against law enforcement agencies.

Under 1070, this inquiry to ICE is supposed to occur only when an officer has "reasonable suspicion" that an individual he or she has stopped is "unlawfully present" in the country.

Somehow, an officer is supposed to achieve this without unreasonably prolonging the detention of the stopped individual.

The DHS since has announced that it will not assign more agents to answer phone calls from Arizona, nor will it respond to inquiries that do not mesh with its enforcement guidelines, guidelines that prioritize the detention and removal of "criminal aliens."

Many immigration advocates insist that the DHS' prioritization policy is hooey. Otherwise, how would the Obama administration have been able to deport nearly 1.5 million people in three and a half years?

This may be true. Still, this news out of the DHS should give some pause to officers expected to enforce 1070.


In a press conference following the court's decision on Monday, American Civil Liberties Union national executive director Anthony Romero asserted that the lifting of the injunction against 2(b) is "an invitation to racial profiling."

Ask any cop you know and he'll tell you that within a couple of minutes of driving behind you, he can find a reason to pull you over. And once you're pulled over or stopped on foot, it's only a hop, skip, and a jump to an inquiry about your nationality.

In this sense, the court's decision truly is as "troubling" as Romero characterized it for the media. As you read the majority's opinion, there are moments that you wish Justice Kennedy and his colleagues were neatly ensconced in one of those carnival dunk tanks with a basket of baseballs at the ready.

For instance, Kennedy acknowledges that "officers must make an inquiry even in cases where it seems unlikely the Attorney General would have the alien removed."

His example of someone unlikely to be removed? "[A]n alien [who] is an elderly veteran with significant and longstanding ties to the community."

So, uh, keep abuelo in the attic, mami, otherwise he might get hassled by la policía.

With that one passage, the court acknowledged the racial profiling aspect of SB 1070. The bad news is, the majority let 2(b) slide anyway.

The good news is that it kept the door open to challenges to 1070 on grounds that it violates the Constitution's Fourth Amendment, which prohibits unreasonable search and seizure, and the Fourteenth Amendment's implied prohibition against racial profiling

"This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect," Kennedy wrote, in what reads like an invitation to 1070's opponents.

Fortunately, the white hats won't wait for 1070's injunction to be formally lifted, a process that may take three or four more weeks.

In that time, the ACLU and other groups suing Arizona in a separate case, Friendly House v. Whiting, have signaled that they will petition Judge Bolton to maintain an injunction against 2(b).

As I discussed in a blog post following the oral arguments over 1070 ("SB 1070 and a Ray of Hope," April 26), the plaintiffs in Friendly House already asked Bolton for an injunction against 2(b) on constitutional issues other than preemption, the grounds upon which Kennedy and the majority decided Arizona v. United States. (That is, federal immigration law trumps state law.)

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30 comments
Kevin
Kevin

Just because an opinion is in the minority does not make it wrong. As Judge Scalia stated in his response, The nation is only sovereign because it is made up of sovereign states. The States created the federal government, not the other way around. Only when the governor's of the respective states tell DC to go to hell and the 17th amendment is repealed will the states get back the power that has been diluted and created the mess we are in.

Tomato
Tomato

Learn to read. You rednecks lost on every point but that one, and challenges will be mounted on the papers-please part. It will never last. The Supremes have invited the likes of the ACLU to challenge this. This is what this article and numerous others have said. Try to get a clue, if you have a couple of IQ points to rub together (doubt you do).

Tomato
Tomato

Boo-fucking-hoo! That you need to speak Spanish in this country nowadays is news to you. No wonder you're unemployed.

Tomato
Tomato

Spoken like a true teabagger...

blah blah blah
blah blah blah

The law remains and was voted constitutional. SB1070 is just a start. States are sick of this illegal bullsh*t they have to put up with and pay for on a daily basis. There will be more if this to come, so pull your panties up and deal with it like other countries that enforce their immigration laws do. It's going to be sink or swim now. California has sunk.

Pk
Pk

is this your address Stephen? LEMONS STEVE J/NANNETTE 3100 S GREYTHORNE WY CHANDLER AZ 85248 USA

Pk
Pk

way to stay classy newtimes, must be fun to own a news outlet and put the local city name on your title but not have an actual location in town.

Pk
Pk

its better to be a teabagger than being teabagged.

Anon
Anon

Stephen Lemons, You are hitting nothing but homeruns! Wow! Outstanding article. Great public service. Courageous reporting.

sarum
sarum

Friendly House should have NO STANDING. They are a racist xenophobic entity that only helps illegals who speak Spanish. Anyone else can die as far as they are concerned. United Way is also guilty here because they permit "Friendly House" to solicit funds through them annually without stating that "Friendly House" is only "friendly" to Spanish speakers. This is a violation of law and serious misrepresentation by both United Way and "Friendly House."

Anon
Anon

Mr. Lemons, No one can out run you on the truth in Arizona! The artwork captured the essence of Arizona. Outstanding. The image is etched in my mind.

Concerned Citizen / Taxpayer
Concerned Citizen / Taxpayer

Stephen Lemons, You are on a roll. All your years of work is coming to a head! We thank you for your courage and great public service.

GreenHornet
GreenHornet

Okay, doofus, let me explain this again 4 ur ignorant arse. You call yourselves the Tea Party, trying to associate yourselves with a historical bunch of American patriots. But you're not patriots, you're a bunch of old toothless idiots who are racist as hell and hate Obama cuz he's black. To belittle you, we call you "teabaggers" because this is a tea bag and u are just as lame: http://en.wikipedia.org/wiki/Tea_bag But because you're a dried up old fart who never got any when he was young and whose wiener is now dead as a doorknob, all u think about is perverted sexual practices. So, this is the kind of teabagger ur sewer mind thinks of: http://www.urbandictionary.com/define.php?term=teabagging Here's an example of its use in a way ur familiar: "At the frat house last night, when Howebouthat was wasted an down on the floor, he got teabagged by, like, ten guys!" Sound familiar? Yes your mouth is watering right now. U can't help it. Because if Obama wanted to teabag u, you'd let him. That's the truth, u want to be tebagged by Obama, a black man. Which is another reason why u hate him. Get it?

Howebouthat
Howebouthat

thats the whole intention of this law, im glad someone realizes that wanting people to put in their fair share and be on the books like everyone else isnt racist

Howebouthat
Howebouthat

why is it that publications such as this can freely call the tea party movement a term such as teabaggers but if the radical left is called pussies then its all out war? doesnt it seem a little backwards that one side can use a sexually derogative term while the other side is reprimanded for it? isnt a discussion or commentary such as this intended to be intellectual and NOT slanderous?

Masked Magician
Masked Magician

Is that photo of GED Jan befoe or after her daily bottle of Johnnie Walker Blue Label? Pearce, Jan, the MCSO shurf, Tom "Banned for Life by the SEC" Horne, etc. knew that BS1070 would fail, miserably. Obama has his re-election sealed. With his victory on BS1070 and ObamaCare, and his recent steps towards immigration reform, Obama will win hands-down.

GreenHornet
GreenHornet

Ahahahahahahahahahaaaaaaa! Obama wins 2 big ones this week. Republi-tards are LOSERS.

Tom
Tom

This is not a news item. It is just more propaganda from the comsoclibprogs.

GreenHornet
GreenHornet

The "Tea Party" is made up of "TeaBaggers" like you. You've seen a Lipton's tea bag, haven't you? People in your "party" wear them on their hats. Get your sick Republican mind out of the gutter

Carter7476
Carter7476

Yes, I know, it was sarcasm, directed at Brewer.

Mrh02022010
Mrh02022010

your wrong the supreme court made a human decision based on humanity nothing more nothing less..

Roger Guiles
Roger Guiles

"Teabaggers"? What does a perverted sex act (used vastly by those liberal left wing nuts) have to do with this travesty of our nations sovereignty?

Carter7476
Carter7476

"There are Head Less Bodies on the Supreme Court, to, also".

Tommy Collins
Tommy Collins

PV, in law enforcement reality this ruling was no victory for anyone. Professional law enforcement agencies have been involved with immigration enforcement for the last 50 years or so, using federal law that allows them to call ICE or Border Patrol when they have someone detained or in custody and the believe them to be in violation of immigration laws. This ruling simply states that a police officer is 'required' to notify ICE and/or BP when they reasonably suspect that someone may be in violation of immigration laws, while legally detained or in custody. I can guarantee you that the majority of 'suspected' immigration violations likely will NOT be called in. The reality is that immigration enforcement is not the highest priority for most police agencies and most police agencies fully realize that ICE and BP have their job to do, while the local cops take care of local criminal problems and order maintenance issues. If you want a good understanding of this reality please read the book just released under the title: "If there were any victims" by Bill Louis. It is very well presented and tells a lot about law enforcement processes that many folks don't understand.

Kevin
Kevin

What is your purpose of posting his address? Do you have a power trip to ride on? What a tool!

Tomato
Tomato

It's called the First Amendment, stupid. Freedom of the press. If you don't like being called a Teabagger, Teabagger, then get Russell Pearce's balls out of your mouth.

Willard W. Olson
Willard W. Olson

Hmmm--that explains a lot about Jan's behavior. A daily bottle of Johnnie Walker blue label on top of genetic mediocrity provides an adequate explanation plus a little fundamentalist religious spice fills out the picture. A least she has good taste in Scotch.

Howebouthat
Howebouthat

nice one, slander anyone who disagrees with you. but when you're slandered its a travesty. grow a fuckin set because when the country gets as pissed at obama as they were with bush its all comin your direction

 
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