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Antonin Scalia on Immigration

Supreme Court Justice (nominated by Pres. Reagan 1986)


AZ feels besieged by immigrants & feds unwilling to fix it

The common perception that the federal government neither effectively polices the border nor aggressively enforces immigration laws evokes a strong popular backlash, reflected in laws enacted by several states seeking to control illegal immigration. Justice Antonin Scalia eloquently voiced that sentiment in his dissenting opinion to the US Supreme Court that struck down several portions of SB 1070. "Arizona bears the brunt of the country's illegal immigration," Scalia wrote. "Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so."
Source: Immigration Wars, by Jeb Bush, p.108-109 , Mar 5, 2013

No judicial limit on detaining illegal immigrants

The Supreme Court ruled today that the government may not detain deportable aliens indefinitely simply for lack of a country willing to take them. The 5-to-4 decision rejected the government’s view, as argued by both the Clinton and Bush administrations, that immigration law authorized and the Constitution permitted indefinite, even lifelong detention of immigrants adjudged deportable but unable to be repatriated.

Justice Breyer’s majority opinion-joined by O’Connor, Stevens, Souter, and Ginsburg- said that because interpreting the law in that way would present a “serious constitutional threat” under the Fifth Amendment’s guarantee of due process, the court would construe the law to permit only “reasonable” detention, [defined as] six months in custody.

Justice Kennedy objected that the court was unwisely substituting “judicial judgment for the executive’s discretion and authority.” The case, Zadvydas v. Davis, No. 99-7791, will have an immediate impact on at least several thousand people.

Source: Linda Greenhouse, NY Times , Jun 29, 2001

Automatic deportation for aliens convicted of crimes.

Justice Scalia wrote the dissent on INS v. St. Cyr on Jun 25, 2001:

The Immigration and Naturalization Service (INS) began deportation of Enrico St. Cyr after he pleaded guilty to a controlled substance violation. St. Cyr, a lawful permanent resident for ten years and a citizen of Haiti, became deportable by being convicted of the controlled substance violation. Before the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the Attorney General could waive deportation of resident aliens. The AEDPA and IIRIRA, however, limited the class of aliens who can apply for relief.

HELD: By Stevens, joined by Kennedy, Souter, Ginsburg, Breyer

Justices decide, 5-4, against automatic deportation of those convicted of crimes before new stringent legal provisions took effect in 1996. Congress did not intend to strip the federal district courts of their authority to hear petitions from deportable aliens and that the AEDPA and IIRIRA did not deny relief to aliens who would have been eligible for such relief at the time of their convictions.

DISSENT #1: By Scalia, joined by Rehnquist, Thomas, and joined in part by O'Connor

Scalia, in dissent, argued that the plain language of the AEDPA and IIRIRA stripped the federal district courts of jurisdiction to entertain habeas corpus petitions. Scalia also argued that the majority was forcing Congress to use "magic words" to overcome the presumption of habeas corpus relief.

DISSENT #2: By O'Connor

The law guarantees some minimum extent of habeas review, but the right asserted by the alien in this case falls outside the scope of that review.
Source: Supreme Court case 01-ST-CYR argued on Apr 24, 2001

INS may hold suspects for deportation, but habeas applies.

Justice Scalia joined the concurrence on Demore v. Kim on Apr 29, 2003:

The Immigration and Nationality Act allows taking into custody any alien who is removable from this country because he has been convicted of one of a specified set of crimes. Respondent Kim, a lawful permanent resident alien, was convicted in state court of first-degree burglary; the Immigration and Naturalization Service (INS) charged him with being deportable, and detained him, without bail, pending his removal hearing.

HELD: By Rehnquist; joined in full by Kennedy; in part by O'Connor, Scalia, & Thomas

The Court held
  1. that the Immigration and Nationality Act does not deprive the federal courts of jurisdiction to grant habeas relief to aliens challenging their detention, and
  2. that detention during removal proceedings is a constitutionally permissible part of that process.
Rehnquist wrote that Congress, concerned that deportable criminal aliens may fail to appear for their removal hearings, has the authority to require that persons be detained for the brief period necessary for their removal proceedings.

CONCURRENCE IN PART 2; DISSENT IN PART 1: By O'Connor; joined by Scalia & Thomas

O'Connor dissented from the first holding, reasoning that the Act deprives federal courts of jurisdiction in such a case.

CONCURRENCE IN PART 1; DISSENT IN PART 2: By Souter; joined by Stevens, Ginsburg & Breyer

This concurrence dissented from the Court's second holding; i.e., that the INS may not indefinitely hold people awaiting hearings for deportation. The minority argued against lengthy mandatory detention: "The Court's holding that the Constitution permits the Government to lock up a lawful permanent resident of this country when there is concededly no reason to do so forgets over a century of precedent acknowledging the rights of permanent residents, including the basic liberty from physical confinement lying at the heart of due process."
Source: Supreme Court case 03-DEMORE argued on Jan 15, 2003

AZ may revoke licenses for hiring unauthorized aliens.

Justice Scalia joined the Court's decision on CHAMBER OF COMMERCE v. WHITING on May 26, 2011:

The 1986 federal Immigration Reform and Control Act forbids state governments from sanctioning employers who hire "unauthorized aliens." The 2007 Legal Arizona Workers Act authorizes State courts to suspend and revoke State-issued licenses, charters, etc. for businesses that knowingly hire "unauthorized aliens." The AZ law also requires employers to use the federal E-Verify system to determine the work eligibility of all employees.

HELD:Delivered by Roberts; joined by Scalia, Kennedy, Alito & Thomas

The federal law allows States to take licensing action. The word "license" includes the many forms of legal permission to perform an act, and therefore includes charters, articles of incorporation, etc. The AZ law relies only on determinations made by federal authorities of employment eligibility, and allows employers the same good faith defense as in federal law. Employers, in fact, must use the E-Verify system provided by the federal government.

DISSENT #1:Breyer dissents; joined by Ginsburg

The AZ law intrudes on Congress's balancing of
  1. immigration enforcement
  2. burdens on employers, and
  3. prevention of discrimination.
The meaning of "licensing" in the immigration law was never intended to mean every form of business permit that a State might issue, but only in regards to licensed employment agencies. Also, E-Verify is error prone and may not be relied upon.

DISSENT #2:Sotomayor dissents

This one poorly drafted clause in the federal immigration statute was only meant to allow States to take action against business licenses AFTER a successful federal government prosecution of a business for hiring an unauthorized alien. The AZ law runs contrary to the uniformity and expertise in enforcement of immigration law that Congress intended by allowing only federal officials to prosecute and rule upon civil and criminal cases.

Kagan recused herself.

Source: Supreme Court case 11-WHITING argued on Dec 8, 2010

Other Justices on Immigration: Antonin Scalia on other issues:
Samuel Alito
Stephen Breyer
Ruth Bader Ginsburg
Elena Kagan
Anthony Kennedy
John Roberts
Antonin Scalia
Sonia Sotomayor
Clarence Thomas

Former Justices:
David Souter
Sandra Day O'Connor
William Rehnquist
John Paul Stevens

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Page last updated: Mar 08, 2014