Scalia blasts Obama in Arizona dissent statement

posted at 3:21 pm on June 25, 2012 by Ed Morrissey

Can you say future recusal, boys and girls?  I knew you could:

Supreme Court Justice Antonin Scalia on Monday ripped President Obama’s new deportation directive when he offered his minority opinion on the Arizona immigration ruling.

The court tossed out most of Arizona’s controversial immigration law, but in his dissent Scalia raised eyebrows by blasting the Obama administration’s directive to stop deporting some young illegal immigrants though that policy was not a matter before the court in the Arizona case.

The conservative justice accused Obama of selectively enforcing only those immigration laws that he deems appropriate and said states would never have joined the union if the framers of the Constitution had intended for the executive branch to wield power in such a way.

“The delegates to the Grand Convention would have rushed to the exits,” Scalia wrote.

SCOTUSBlog mentioned this at the time Scalia read his dissent from Arizona, and it produced more than a few figurative raised eyebrows on Twitter.  The deportation policy change has nothing to do directly with the issue in Arizona, although one could argue that there is an indirect relation.  The administration argued that federal resources are finite, and that the federal government has the authority to dictate how they get used and not the states.  That’s at least consistent with the argument Obama used ten days ago in the immigration policy change statement, saying that the White House would prefer to use scarce prosecutorial resources on deporting people engaging in significant criminal activity.

More to the point, though, is the danger of having a Supreme Court justice take a public stance on a public-policy issue that has at least a decent chance of becoming part of a court fight.  Rep. Steve King (R-IA) and others have already threatened to take Obama to court over the imposition of the DREAM act by executive fiat.  Thanks to this public outburst, Scalia has put himself in position for a recusal, since it’s pretty clear that he has a built-in bias on the specific issue.  It may have felt satisfying, but in the end the blast will do more damage than good.

The same might be true of the Arizona result for the Obama White House. As I argue in a piece written for CNN, the ruling was a victory for Obama and the Department of Justice, but the narrow reversal on section 2B gave Jan Brewer and other SB1070 advocates just enough room to claim victory for themselves.  The win won’t do Obama much good anyway, even if he can convince people that he actually did win:

Unfortunately for the administration, the Supreme Court reversed the lower court on the most controversial part of the law, the “show me your papers” provision that requires law enforcement officers to check the immigration status of people while enforcing other laws. …

But that narrow win is tenuous. The court pointedly did not rule that the provision was constitutional, which means that further court cases may well strike it down at a later date. Arizona can put it into effect, but it probably won’t take too much time before a case comes up that will put the provision back under scrutiny. …

First, the coming Obamacare ruling will vastly overshadow this nuanced win by Thursday morning. Second, this win serves as a reminder that the Obama administration has done a poor job of enforcing immigration law — and along with Obama’s recent decision to stop deporting some young illegal immigrants – border states have no reason to expect a second term that will improve on the first.

The ruling itself only reversed the 9th Circuit on 2B for applying pre-emption.  It made no ruling on whether the clause was constitutional on its own merits:

It was improper to enjoin 2(B) before the state courts had an opportunity to construe it and without some showing that 2(B)’s enforcement in fact conflicts with federal immigration law and its objectives.

That basically says that the federal government doesn’t pre-empt state and local officials from checking immigration status — which we already know, as the federal government trains state and local law enforcement how to do just that.  Once Arizona starts to put this into effect, though, the provision can still be challenged on other issues, such as due process, reasonable cause, discriminatory enforcement, and so on.  The Supreme Court hardly endorsed 2B in this decision, and they certainly left the door wide open to any other challenges.

Update: Let’s clear up a couple of things from the comments.  No, no one can make Scalia recuse himself and I’m not calling on him to do so, but appellate jurists are supposed to refrain from making specific public comments on matters that may come before the court.  It’s inappropriate, and that’s exactly what Scalia did in this case. If Ruth Bader Ginsburg inserted support for Obama’s immigration policy change into an opinion, you can bet that conservatives would be screaming for a recusal if/when a challenge to it came before the Supreme Court, and we’d be right to do so.

Second, Kagan didn’t recuse herself on ObamaCare, but she wasn’t being pressured to do so because of public statements of support; she hadn’t made any public statements of support.  The assumption was that she helped the Obama administration strategize on the legal defense of ObamaCare, but no one has shown any proof that Kagan did so.  E-mails surfaced that showed she was copied on those efforts occasionally while serving as Solicitor General, but nothing showed she took part.  It’s an apples-to-oranges comparison, especially since more than one issue can arise which necessitates recusal.

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Can you say future recusal, boys and girls? I knew you could:

Why? It’s entirely applicable to his point… why should he not mention it?

ninjapirate on June 25, 2012 at 3:24 PM

Scalia?……..meh, nothing burger.

The real power is with President Whistle-all-the-Time.

SCOTUS /Congress…. Meh, who needs them?

PappyD61 on June 25, 2012 at 3:25 PM

Sorry, but I find this blog post more irresponsible than Scalia’s comments…

ninjapirate on June 25, 2012 at 3:27 PM

Who’s going to make him recuse himself? Kagan?

gwelf on June 25, 2012 at 3:27 PM

If Kagan didn’t recuse on Obamacare, no way this qualifies for a Scalia recusal on related matters.

Scalia’s dissent was clearly and concisely related to the matter at hand. His comments, in full, were clearly within the boundaries of the case. Mr. Obama’s selective enforcement of the law and his own statements are more damning than anything Justice Scalia said.

Lets see how that plays out in court.

Marcus Traianus on June 25, 2012 at 3:27 PM

on townhall, an article was saying Scalia blasted this ruling because of the fact that the justices will be upholding Obamacare. It was sort of a let out frustration moment

Conservative4ev on June 25, 2012 at 3:27 PM

Why? Kagan didn’t have to recuse over the enthusiasm for Obamacare that she exhibited in her email exchanges.

obladioblada on June 25, 2012 at 3:28 PM

Time for an update, Ed. Barry is ordering ICE not to even enforce this law. http://www.washingtontimes.com/news/2012/jun/25/homeland-security-suspends-immigration-agreements-/

cdog0613 on June 25, 2012 at 3:29 PM

Can you say future recusal, boys and girls? I knew you could:

Why? It’s entirely applicable to his point… why should he not mention it?

ninjapirate on June 25, 2012 at 3:24 PM

This isn’t a basis for any future recusal. The government’s argument in the case was based on a lie. Scalia was well within his discretion to point that out.

Dark Star on June 25, 2012 at 3:29 PM

Why does one need to recuse himself for giving a minority opinion on a certain case? What am I not getting? By that logic, everyone in favor of the ruling needs to recuse themselves on future related cases. I am not getting it.

Static21 on June 25, 2012 at 3:29 PM

Did Kagen recuse herself from the Obamacare case? Our Republic will not stand when only one side plays by the rules.

txhsmom on June 25, 2012 at 3:29 PM

I was priviledged to hear Justice Scalia speak at Washington University in 1994.

Compared to Scalia’s eloquence, Obama is a carnival barker.

NoDonkey on June 25, 2012 at 3:30 PM

It worries me that Clement gave a strong argument in Arizona, just as he did in the ObamaCare cases, and the SG gave horribly weak arguments in Arizona, just as in ObamaCare. It worries me that the justices asked hard questions during orals, just as in the ObamaCare cases. Is this split-the-baby result a harbinger of what we will see on Thursday? I hope not, but my concern meter is rising up to Allah territory.

MTF on June 25, 2012 at 3:31 PM

By the way, The Obama Administration basically is now using this same tool, their refusal to enforce the law, to penalize Arizona for taking this to SCOTUS.

DHS now says they will limit the calls taken from Arizona and tell them to release anyone without a felony conviction.

Scalia is right and this is the most corrupt, shameful administration in the history of our country.

Marcus Traianus on June 25, 2012 at 3:31 PM

HUH? …Little too clever by half Ed…

winston on June 25, 2012 at 3:32 PM

Can you say future recusal, boys and girls?

Given Kagan did not recuse herself from obamacare and there is a paper trail showing her involvement in drafting opinions for the president then I see no reason or valid argument as to was Scalia would have to recuse himself over this opinion, it is an opinion and part of his job to write it. Actually I would argue it establishes precedent for future court rulings on the matter.

Are we going to start calling for recusals for every conservative judge who offers dissenting opinions on issues not narrowly and only specific to the law reviewed? We don’t hold the liberal ones to that standard why hold the conservatives ones to it? Liberal opinions are constantly rife with this kind of speculative crap.

Skwor on June 25, 2012 at 3:32 PM

By the way, The Obama Administration basically is now using this same tool, their refusal to enforce the law, to penalize Arizona for taking this to SCOTUS.

DHS now says they will limit the calls taken from Arizona and tell them to release anyone without a felony conviction.

Scalia is right and this is the most corrupt, shameful administration in the history of our country.

Marcus Traianus on June 25, 2012 at 3:31 PM

And 44% of the nation approve of it

Conservative4ev on June 25, 2012 at 3:33 PM

Just this from spam email from Sen Warner:

The Senate passed a five-year farm bill last week on a broadly bipartisan 64-35 vote. It responsibly supports our farmers, consolidates many duplicate USDA programs, reforms nutrition aid programs — and cuts $23 billion from the deficit.

I’m pleased to tell you I successfully amended this legislation to ensure that the limited USDA funds set-aside for rural broadband actually get spent extending high-speed internet to our rural communities. Believe it or not, until now, only about 3% of these USDA broadband funds were spent in rural regions that still have no broadband service at all.

How nutritional is broadband anyway, and does it cut cholesterol?

Notice he didn’t say where it was spent. He probably didn’t think that would be important.

BobMbx on June 25, 2012 at 3:34 PM

Yeah. Kagan.
Try again.

CherryBombsBigBrownBeaver on June 25, 2012 at 3:34 PM

Yeah, why should Scalia recuse himself when Kagan has not recused herself – she worked on the friggin’ POS bill, for gosh sakes. Kagan’s non-recusal has basically set a precedent for justices NOT recusing themselves EVER for almost ANY reason.

Marxism is for dummies on June 25, 2012 at 3:35 PM

BIG SIS TO AZ: DROP DEAD!

repvoter on June 25, 2012 at 3:35 PM

Time for an update, Ed. Barry is ordering ICE not to even enforce this law. http://www.washingtontimes.com/news/2012/jun/25/homeland-security-suspends-immigration-agreements-/

cdog0613 on June 25, 2012 at 3:29 PM

ABSOLUTELY!!!!!!

CherryBombsBigBrownBeaver on June 25, 2012 at 3:36 PM

The administration argued that federal resources are finite, and that the federal government has the authority to dictate how they get used and not the states.

The “we have limited immigration enforcement resources” argument might have been more persuasive had Obama not just unilaterally instituted a federal policy that is going to cost a lot more federal immigration resources than actual enforcement would.

How many millions or billions of dollars is the federal government going to need to spend on reviewing and processing the applications of all the “under age 30″ illegal aliens who’re going to be eligible now for 2-year work permits under Obama’s executive amnesty scheme? Or for reviewing and processing the renewal applications for those hundreds of thousands (or millions) of work permits every other year?

Also, AZ wasn’t trying to use federal resources by adding state penalties to already-codified federal immigration violations. AZ was going to prosecute and penalize the state-law violations using its own resources, not the feds’. Why should the feds’ limited resources stop AZ from using its own resources to help enforce immigration laws?

AZCoyote on June 25, 2012 at 3:36 PM

on townhall, an article was saying Scalia blasted this ruling because of the fact that the justices will be upholding Obamacare. It was sort of a let out frustration moment

Conservative4ev on June 25, 2012 at 3:27 PM

Eek! I had to go over to Townhall.com and find that article. So far, that’s only speculation… but all the same, the next three days will see bite marks all over my knuckles.

Mary in LA on June 25, 2012 at 3:36 PM

Doesn’t matter dear leader wont enforce any of the laws in the books

cmsinaz on June 25, 2012 at 3:36 PM

Arggh….sorry for the above. Its a leftover copy and paste for another website.

Here’s what I intended:

DHS now says they will limit the calls taken from Arizona and tell them to release anyone without a felony conviction.

So Bin Laden would be free to go, eh?

BobMbx on June 25, 2012 at 3:37 PM

Ed, I think this is a rare mistake by you. There is no precedent for a Supreme Court Justice recusing themselves because they may or may not have a “bias” towards one position or the other; recusal is only justified when they have (or more correctly, perceive themselves to have) a Conflict of Interest in the case. For instance, today Elena Kagan had participated in the preparation of the Governments side of one of the cases. She recused herself not because she may have been “biased” but because she had an obvious conflict of interest if she were asked to rule on the correctness of something she herself had already written. No one could reasonably expect that she would rule against her own previous work, therefore recusal was justified. But if we were to apply the rule of “bias”, then Justice Ginsburg, ex-head of the ACLU, would be expected to recuse herself on *every* civil liberties case since there is never any secret about her opinions there. But even though she may be “biased” in those cases, she has no demonstrable Conflict of Interest, so she will never be expected or asked to recuse herself in them. Same goes for any other Justice whose opinions are known in any particular area.

Bias and Conflict of Interest – Not the Same Thing. One warrants recusal, but the other is just a big whoopteedoo.

Tom Servo on June 25, 2012 at 3:37 PM

Time for an update, Ed. Barry is ordering ICE not to even enforce this law. http://www.washingtontimes.com/news/2012/jun/25/homeland-security-suspends-immigration-agreements-/

cdog0613 on June 25, 2012 at 3:29 PM

Rid the country of this lawless administration, vote Barry and his gang out in November.

bayview on June 25, 2012 at 3:37 PM

on townhall, an article was saying Scalia blasted this ruling because of the fact that the justices will be upholding Obamacare. It was sort of a let out frustration moment

Conservative4ev on June 25, 2012 at 3:27 PM

Please for everyone’s salvation from boredom teach that pony more than just this one trick.

Skwor on June 25, 2012 at 3:37 PM

Scalia is right and this is the most corrupt, shameful administration in the history of our country.

Marcus Traianus on June 25, 2012 at 3:31 PM

How is this any different from any Administration since Reagan? Reagan, Clinton, and both Bushes did the same thing with immigration by directives altering way immigration laws were enforced.

lexhamfox on June 25, 2012 at 3:38 PM

Ed, you’re off base on this. Scalia mentions the Obama decision as evidence that the federal government has decided not to enforce federal immigration law. He then uses that to skewer the majority who believe that a state enforcing those laws is pre-empted.

He offers no opinion on the legality or constitutionality of Obama’s decisions, which is what would give rise to genuine questions of recusal. What he did here is a totally different category.

Nessuno on June 25, 2012 at 3:39 PM

Doesn’t matter dear leader wont enforce any of the laws in the books

cmsinaz on June 25, 2012 at 3:36 PM

Yeah, he’s the “make it up as you go along” preezy.

GrannyDee on June 25, 2012 at 3:40 PM

I was priviledged to hear Justice Scalia speak at Washington University in 1994.

Compared to Scalia’s eloquence, Obama is a carnival barker.

NoDonkey on June 25, 2012 at 3:30 PM

Carnival barking actually requires talent. Never seen one use a Teleprompter.

wildcat72 on June 25, 2012 at 3:41 PM

Scalia is simply giving a civics lesson. The executive branch is charged with enforcing the laws passed by the legislators. If he hasn’t successfully vetoed it, a law must be enforced. The Obama administration refuses to do that. He has willfully abdicated his oath of office. And by the way, mandate aside, the number of waivers given by the president for his own health care law should be enough to consider it unconstitutional.

DaveDief on June 25, 2012 at 3:42 PM

Ed, I think this is a rare mistake by you. There is no precedent for a Supreme Court Justice recusing themselves because they may or may not have a “bias” towards one position or the other; recusal is only justified when they have (or more correctly, perceive themselves to have) a Conflict of Interest in the case.

Tom is correct. Should a judge (at any level) recuse from a case for having made a public statement concerning one of the litigants earlier?

Lets say Judge X is seen at a State Fair by a reporter who asks “how do you like the “Snickers on a Stick” and answers “this is delicious..whoever thought of this should get an award”.

Later on in life, a case involving “Snickers on a Stick” is brought to his court.

Recuse or not?

BobMbx on June 25, 2012 at 3:42 PM

I don’t see Kagan recusing herself from the HHS mandate, and she had more in it than Scalia does on the immigration issue.

Turtle317 on June 25, 2012 at 3:43 PM

Kagan’s non-recusal has basically set a precedent for justices NOT recusing themselves EVER for almost ANY reason.

Marxism is for dummies on June 25, 2012 at 3:35 PM

Exactly. She wrote an e-mail celebrating the passage of Obamacare, before the law was challenged in a lawsuit. Why can’t Scalia write a dissent criticizing the institution of Obama’s unilateral executive amnesty policy, before it is challenged in a lawsuit?

Bias is bias. Is it only disqualifying when it is displayed by a conservative justice?

AZCoyote on June 25, 2012 at 3:43 PM

If Ogabe wins another term, Scalia’s recuse won’t matter because the executive branch will ignore the unfavorable ruling anyway.

If Ogabe loses, Scalia’s recuse won’t matter either because President Romney will trash the EO and completely replace the departmental staff, including DHL – and if he doesn’t, the country is gone anyway.

That’s why Scalia thought it appropriate to rant out: nobody, not even sane lefties (few of whom remains), would ever accuse him of being stupid or impulsive.

Archivarix on June 25, 2012 at 3:45 PM

It’s all over. Everything that made this nation unique and worthy of admiration is gone. The Obama regime has trashed the Constitution, the rule of law, our sovereignty and our unity. One must either yield to this Faustian power or leave the country.

rplat on June 25, 2012 at 3:45 PM

Yepper granny

Spot on azcoyote

cmsinaz on June 25, 2012 at 3:46 PM

Time for an update, Ed. Barry is ordering ICE not to even enforce this law. http://www.washingtontimes.com/news/2012/jun/25/homeland-security-suspends-immigration-agreements-/

cdog0613 on June 25, 2012 at 3:29 PM

It’s like dealing with a rebellious teenager.

Who said? You can’t MAKE me do it, nyah, nyah.

The Rogue Tomato on June 25, 2012 at 3:46 PM

“The delegates to the Grand Convention would have rushed to the exits,” Scalia wrote.

It’s never too late. Personally, I would love my state distanced itself from DC/NY/Chicago corruption. I don’t like that region of the continent and don’t want to be associated with them anymore. The Marxism and fascism is strong in that that area and is harmful to my state and my interests.

FloatingRock on June 25, 2012 at 3:47 PM

Also, even though most Justices are supposedly against murder, we still let them rule on murder appeals. Having a general opinion does not amount to bias.

Archivarix on June 25, 2012 at 3:47 PM

More to the point, though, is the danger of having a Supreme Court justice take a public stance on a public-policy issue that has at least a decent chance of becoming part of a court fight. Rep. Steve King (R-IA) and others have already threatened to take Obama to court over the imposition of the DREAM act by executive fiat. Thanks to this public outburst, Scalia has put himself in position for a recusal, since it’s pretty clear that he has a built-in bias on the specific issue.

So they’re not allowed to opine on anything that might come before the court? Not sure I follow.

changer1701 on June 25, 2012 at 3:47 PM

Bias and Conflict of Interest – Not the Same Thing. One warrants recusal, but the other is just a big whoopteedoo.

Tom Servo on June 25, 2012 at 3:37 PM

Sounds right to me.

Was this not part of his minority opinion? If so it is meaningless in future cases. Otherwise if a similar case went up no one could rule. He is just pointing out what the Original Intent of the founders was to what Obama did.

I see no conflict here.

Steveangell on June 25, 2012 at 3:48 PM

Since we’re now a nation without laws, does it really matter what he says?

Mr. Arrogant on June 25, 2012 at 3:48 PM

“The court tossed out most of Arizona’s controversial immigration law” STOP REPEATING TE SOCIALIST MEDIA LIES !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

FACT: Three of the Six Provisions of Arizona’s Outstanding SB1070 Immigration Reform Law Upheld
From the SCOTUS decision, the most important three provisions of SB1070 are in full effect. The remaining three minor provisions can be easily tweaked by the state legislature to conform to federal law.

This is a VICTORY FOR AMERICA – and a CLEAR DEFEAT FOR OBOZO, who places politics above the law.

Perhaps OBOZO should now change his campaign song to reflect reality:
“I fought the law and the law won”. !!!!!!!!!!!!!!!!!!

Bottom Line: SCOTUS has now affirmed the right of states to do what the lawless OBOZO regime refuses to do, namely, enforce America’s immigration laws against the invading hoard of ILLEGALS to protect American citizens.

TeaPartyNation on June 25, 2012 at 3:49 PM

Can we just clear this up once and for all????

In this political environment……Barack Obama is GOD.

No one will dare to seriously question him.

The media is worshipping him and all in DC bow before him.

PappyD61 on June 25, 2012 at 3:49 PM

If the individual mandate holds, I hope the next requirement is that we all must buy guns so we can be the militia.

Wander on June 25, 2012 at 3:51 PM

It’s like dealing with a rebellious teenager.

Who said? You can’t MAKE me do it, nyah, nyah.

The Rogue Tomato on June 25, 2012 at 3:46 PM

Unfortunately, we can’t take O-Thug-o’s car keys away until Nov.

GrannyDee on June 25, 2012 at 3:52 PM

Look at it this way, if Arizona can’t enforce federal law on immigration, California can’t have any firearms laws or even enforce federal firearms statutes.

Speakup on June 25, 2012 at 3:53 PM

Thanks to this public outburst, Scalia has put himself in position for a recusal, since it’s pretty clear that he has a built-in bias on the specific issue. It may have felt satisfying, but in the end the blast will do more damage than good.
POSTED AT 3:21 PM ON JUNE 25, 2012 BY ED MORRISSEY

Maybe he feels emboldened enough to drop the anti-judicial activism charade.

verbaluce on June 25, 2012 at 3:53 PM

One thing I haven’t seen brought up any where is an Islamic Terrorist can now walk across the Arizona border and ICE will not look into the matter? Or will they look into and then the terrorist will be awarded 30 billion dollars because he was racially profiled? Our southern border is defenseless. Should say absolutely defenseless because it was already defenseless before.

Herb on June 25, 2012 at 3:55 PM

Good for Scalia!

What he said NEEDED to be said.

If noone else would say it, then I am glad he did. I admire
this man.

Amjean on June 25, 2012 at 3:56 PM

Well, it’s a lead pipe cinch that nothing is going to happen between now and the election. More encouragement to get rid of his royal highness in November.

Cindy Munford on June 25, 2012 at 3:56 PM

Can we just clear this up once and for all????

In this political environment……Barack Obama is GOD.

No one will dare to seriously question him.

The media is worshipping him and all in DC bow before him.

PappyD61 on June 25, 2012 at 3:49 PM

So true.

So sad.

No way out either.

Mitt Romney moved from conservative to be a liberal moderate in Mass. He could end up being worse than Obama. He continually signals that he would support Obama policies. His spokesman defends Obama says “He is doing a great job”.

NoMittObama 2012.

I pray to GOD that he will help us. The Republican Party is not the answer. In most ways it is just another Democratic Party. Thankfully the Tea Party is changing it but it will take a lot more time. Time I doubt we have.

But I will not support a Democrat Imposter like Mitt Romney.

Steveangell on June 25, 2012 at 3:57 PM

Oh by the way, Kagan didn’t recuse herself this morning in the summary reversal of the Montana Supreme Court, even though she PERSONALLY ARGUED the reargument in Citizens United. Don’t talk to me about Scalia’s ethics.

senor on June 25, 2012 at 3:57 PM

The court tossed out most of Arizona’s controversial immigration law, but in his dissent Scalia raised eyebrows by blasting the Obama administration’s directive to stop deporting some young illegal immigrants though that policy was not a matter before the court in the Arizona case.

It was certainly connected to the case in that the Indonesian Imbecile’s argument to the Court was the same – that the feral government gets to decide which federal laws they will enforce and which they won’t. Their argument against Arizona was that Arizona was forcing them to enforce laws they/King Emperor Admiral Barky had decided that he didn’t want to, which is the same exact thing he did in his fiat amnesty diktat.

To add insult to injury, King Emperor Admiral Barky just refused to enforce federal law even if Arizona reports illegals … which means that the King Emperor Admiral didn’t even have to take anything to the SCOTUS, in the first place.

America, Fundamentally Deformed.

This is nasty, nasty stuff, this sweeping tyranny by an America-hating retard and his lunatic junta. They all belong in jail. History will record this as one of the lowest times in all the history of Western civilization – outsourcing the suicide of the greatest nation ever to an Indonesian with an IQ in the low 80′s. Talk about adding insult to injury. Just incredible.

ThePrimordialOrderedPair on June 25, 2012 at 3:58 PM

Let’s clear up a couple of things from the comments. No, no one can make Scalia recuse himself and I’m not calling on him to do so, but appellate jurists are supposed to refrain from making specific public comments on matters that may come before the court. It’s inappropriate, and that’s exactly what Scalia did in this case. If Ruth Bader Ginsburg inserted support for Obama’s immigration policy change into an opinion, you can bet that conservatives would be screaming for a recusal if/when a challenge to it came before the Supreme Court, and we’d be right to do so.

Second, Kagan didn’t recuse herself on ObamaCare, but she wasn’t being pressured to do so because of public statements of support; she hadn’t made any public statements of support. The assumption was that she helped the Obama administration strategize on the legal defense of ObamaCare, but no one has shown any proof that Kagan did so. E-mails surfaced that showed she was copied on those efforts occasionally while serving as Solicitor General, but nothing showed she took part. It’s an apples-to-oranges comparison, especially since more than one issue can arise which necessitates recusal.

Win.

libfreeordie on June 25, 2012 at 3:59 PM

Thanks to this public outburst, Scalia has put himself in position for a recusal, since it’s pretty clear that he has a built-in bias on the specific issue. It may have felt satisfying, but in the end the blast will do more damage than good.

More important than even the possibility of a Scalia recusal is getting a much larger Conservative majority on the court, every court.

Speakup on June 25, 2012 at 4:00 PM

One thing I haven’t seen brought up any where is an Islamic Terrorist can now walk across the Arizona border and ICE will not look into the matter? Or will they look into and then the terrorist will be awarded 30 billion dollars because he was racially profiled? Our southern border is defenseless. Should say absolutely defenseless because it was already defenseless before.

Herb on June 25, 2012 at 3:55 PM

As long as he hasn’t committed a felony, yet, and promises to vote democrat.

But, this is more important. /s

CherryBombsBigBrownBeaver on June 25, 2012 at 4:00 PM

on townhall, an article was saying Scalia blasted this ruling because of the fact that the justices will be upholding Obamacare. It was sort of a let out frustration moment

Conservative4ev on June 25, 2012 at 3:27 PM

That’s a reach, I think. He could offer a strong dissent on ObamaCare if it’s upheld and vent frustration then, too.

changer1701 on June 25, 2012 at 4:00 PM

This is nasty, nasty stuff, this sweeping tyranny by an America-hating retard and his lunatic junta. They all belong in jail. History will record this as one of the lowest times in all the history of Western civilization – outsourcing the suicide of the greatest nation ever to an Indonesian with an IQ in the low 80′s. Talk about adding insult to injury. Just incredible.

ThePrimordialOrderedPair on June 25, 2012 at 3:58 PM

Just when I think you can’t get any wackier you go and raise the bar. I can’t *imagine* what you’ll come up with if Obama survives re-election.

libfreeordie on June 25, 2012 at 4:01 PM

So what about sanctuary policies which cities and states come up with to defy the Federal laws .

Is that constitutional?

burrata on June 25, 2012 at 4:01 PM

but in his dissent Scalia raised eyebrows

The statement you say might be cause for recusal is a statement from his official opinion???

Chill.

It’s dicta, not grounds for recusal.

tommylotto on June 25, 2012 at 4:02 PM

we need more scalias on the court

unseen on June 25, 2012 at 4:03 PM

For the first time, I’m getting a queasy feeling about the ObamaCare ruling…

d1carter on June 25, 2012 at 4:03 PM

Let’s clear up a couple of things from the comments. No, no one can make Scalia recuse himself and I’m not calling on him to do so, but appellate jurists are supposed to refrain from making specific public comments on matters that may come before the court. It’s inappropriate, and that’s exactly what Scalia did in this case. If Ruth Bader Ginsburg inserted support for Obama’s immigration policy change into an opinion, you can bet that conservatives would be screaming for a recusal if/when a challenge to it came before the Supreme Court, and we’d be right to do so.

Second, Kagan didn’t recuse herself on ObamaCare, but she wasn’t being pressured to do so because of public statements of support; she hadn’t made any public statements of support. The assumption was that she helped the Obama administration strategize on the legal defense of ObamaCare, but no one has shown any proof that Kagan did so. E-mails surfaced that showed she was copied on those efforts occasionally while serving as Solicitor General, but nothing showed she took part. It’s an apples-to-oranges comparison, especially since more than one issue can arise which necessitates recusal.

Win.

libfreeordie on June 25, 2012 at 3:59 PM

There you go. Can we get something on Big Jan’s finger to AZ!!!!!!!!!!!!!11111!!!!!

CherryBombsBigBrownBeaver on June 25, 2012 at 4:03 PM

Dear Arizona,
Pack up the illegals and put them on a buss to DC!
Much like what Californica did when releasing prisoners in Nevada a few years ago. Precedent has been set.

mediamime on June 25, 2012 at 4:04 PM

Can you say future recusal, boys and girls? I knew you could

Why? Scalia was not simply lashing out at Obama’s directive because he doesn’t like it, he was pointing out a major inconsistency in the government’s argument about scarce resources. Specifically:

It has become clear that federal enforcement priorities — in the sense of priorities based on the need to allocate “scarce enforcement resources” — is not the problem here. After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants under the age of 30. . . . The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conducting as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonenforcement program envisions, will necessarily be deducted from immigration enforcement. [italics original]

So Ed:

The administration argued that federal resources are finite, and that the federal government has the authority to dictate how they get used and not the states. That’s at least consistent with the argument Obama used ten days ago in the immigration policy change statement, saying that the White House would prefer to use scarce prosecutorial resources on deporting people engaging in significant criminal activity.

I don’t think so.

Erich66 on June 25, 2012 at 4:04 PM

if Obama survives re-election.

libfreeordie on June 25, 2012 at 4:01 PM

In that case you’ll have to worry about your sustenance.

Schadenfreude on June 25, 2012 at 4:05 PM

Scalia = National Treasure!

Valkyriepundit on June 25, 2012 at 4:05 PM

Just when I think you can’t get any wackier you go and raise the bar. I can’t *imagine* what you’ll come up with if Obama survives re-election.

libfreeordie on June 25, 2012 at 4:01 PM

Why do you hate all working Americans?

tom daschle concerned on June 25, 2012 at 4:05 PM

Just when I think you can’t get any wackier you go and raise the bar. I can’t *imagine* what you’ll come up with if Obama survives re-election.

libfreeordie on June 25, 2012 at 4:01 PM

Because if the left loses the court battle on ObamaCare next week and the presidential election in Novermber liberals – including you – will be a model of reasoned restraint and reflection?

Lefties like you have already declared democracy dead because “corporations” can exercise their right of speech.

gwelf on June 25, 2012 at 4:06 PM

I hope people understand that all these efforts by the Obama administration, including his latest “we won’t bother to take AZ’s calls on illegal alien apprehensions” don’t just punish AZ. AZ is the gateway into the U.S. for illegal aliens; they come through here, and many stay here and set up residence, but millions more just travel through here on the way to your states.

AZCoyote on June 25, 2012 at 4:06 PM

An incomplete win for Obama
By Ed Morrissey, Special to CNN

CNN? Woo-hoo! Big-time, baby!!!

KS Rex on June 25, 2012 at 4:06 PM

If Obama can ignore immigration laws he doesn’t like, and tell DHS to flip the bird to Arizona and SCOTUS, what makes anyone think he will accept the results of the next election?

merlich on June 25, 2012 at 4:07 PM

The deportation policy change has nothing to do directly with the issue in Arizona, although one could argue that there is an indirect relation. The administration argued that federal resources are finite, and that the federal government has the authority to dictate how they get used and not the states.

Scalia’s point was obviously missed by many.

He made the point that resources could not be a reasonable justification for not enforcing the law when the administration just handed down a policy that would increase the taxing of resources. A policy that was enacted AFTER they stated they didn’t have the resources.

It’s the whole “it’s a tax when we want it to be a tax, but a fine otherwise” argument deja vu.

How they can claim lack of resources as the reason for being against the Arizona law, then tax their own resources further by deciding not to enforce the law?

ButterflyDragon on June 25, 2012 at 4:07 PM

Ah, it’s the “In all fairness” post, a staple on HA for years.

Right Mover on June 25, 2012 at 4:08 PM

Ref Ed’s Update: It amazes me the willingness for anyone -with the backdrop of the last 3+ years- to take anything said by this White House at face value.

It’s ludicrous to think that Kagen wasn’t more involved in the Obamacare defense, she was the pre-Verrilli after all. And as we’ve seen, this Administration isn’t all the forthcoming with information that might make them look bad. National Security information, on the other hand…

BKeyser on June 25, 2012 at 4:09 PM

Our side is playing by the rules, Obozo’s side is using Chicago thug tactics. Isn’t it time we started using some street tactics of our own? If Obama isn’t going to enforce laws then why follow them? How about if Jan Brewer withholds all funds from Arizona to the Feds until they start doing their job?

neyney on June 25, 2012 at 4:10 PM

Well look at it this way, if Bari was to win 4 more, god forbid, the economy will tank so badly, Americans might be going to Mexico for jobs, let alone them coming here………..

angrymike on June 25, 2012 at 4:11 PM

King Emperor Admiral Barky just declared by fiat that the feral government would not do (enforce the law against illegals when notified by a state) exactly what he took Arizona to the SCOTUS to claim that Arizona was going to force it to do. But if he could just issue a diktat to take all the problems away from his laughable SCOTUS case, then what was the point of the SCOTUS case to begin with? “The SCOTUS didn’t act so I had to!”

This is so crazy that people in the future will not be able to understand how our society devolved into such a state. Totally, completely insane.

ThePrimordialOrderedPair on June 25, 2012 at 4:12 PM

Bias? Nonsense. Scalia excoriated the administration for its selective enforcement of the laws, a sign of corruption and contempt for the rule of law. The immigration case was only the example.

By your logic, anytime a justice opines, his opinion could be construed as his “bias,” and that justice would have to consider recusing himself from any other cases that might produce the same opinion.

Aardvark on June 25, 2012 at 4:12 PM

you can bet that conservatives would be screaming for a recusal if/when a challenge to it came before the Supreme Court, and we’d be right to do so.

Why would this be right to do so? It’s the same thing with “news” journalism vs “opinion” journalism. It’s an illusion that justices (like news journalists) don’t have biases, ideologies, etc. Of course they do. Everyone does. Are we better off pretending they don’t have them or knowing what they are?

gwelf on June 25, 2012 at 4:12 PM

BKeyser on June 25, 2012 at 4:09 PM

If bias alone were disqualifying, then Kagan would have had to get up from the bench during the Obamacare oral arguments and disqualify herself. She was coaching the hapless Verilli, trying to help him make better arguments.

AZCoyote on June 25, 2012 at 4:13 PM

For the first time, I’m getting a queasy feeling about the ObamaCare ruling…

d1carter on June 25, 2012 at 4:03 PM

We are screwed dude, this country is done for, The Constitution was written by old dead white guys and history began with Obama. 44% of the American Public approve of this, therefore we will fall into the abyss of darkness and be in line with Europe where the parasitic, can’t make it on their own classes suck up all revenues and therfore have one socialistic utopia

Conservative4ev on June 25, 2012 at 4:13 PM

Ed, I didn’t hear his dissent but from what I read you have missed his point. If the states are not allowed to protect their sovereignty when the feds won’t, then there is no sovereignty. I believe he closed his dissent with this point.

Is Scalia not able to point to a very specific instance of the feds doing exactly what AZ argued they were doing (actually not doing)?

Selective enforcement by the feds was certainly before the court and Scalia has every right to comment on it and point out a very recent and specific example. And it didn’t even take 24 hours before his dissent gained even more credibility as the Obama regime has let it be known they will not be doing anything to enforce the part of the law that was upheld when AZ implements it.

Finally, his dissent may actually be the platform for a counter-suit by the border states who can rightfully argue the feds are overtly refusing to enforce a judicially affirmed law. TX, AZ, NM AL et al should be writing their briefs even now.

The Hammer on June 25, 2012 at 4:13 PM

Well Ed, this is one of those rare instances where you and I disagree.

I know that, being the grown ups, conservatives are held to a different standard then the children (Libs). But the democrats are out of control and any changes in the GOP, vis-a-vis growing backbones is applauded.

Scalia should not recuse himself. Sorry.

the new aesthetic on June 25, 2012 at 4:13 PM

Well look at it this way, if Bari was to win 4 more, god forbid, the economy will tank so badly, Americans might be going to Mexico for jobs, let alone them coming here………..

angrymike on June 25, 2012 at 4:11 PM

What Obama really dreams of.

America a third world Nation.

Unfortunately we have no idea what Mitt will actually do. He radically changes his positions almost always in the direction of Obama. His spokesman says “Obama is doing a great job”. He was not in any way chastised for this statement so Romney must agree. Thus seems to me Mitt would continue his policies in large part.

NoMittObama 2012 or ever.

Steveangell on June 25, 2012 at 4:15 PM

Our side is playing by the rules, Obozo’s side is using Chicago thug tactics. Isn’t it time we started using some street tactics of our own? If Obama isn’t going to enforce laws then why follow them? How about if Jan Brewer withholds all funds from Arizona to the Feds until they start doing their job?

neyney on June 25, 2012 at 4:10 PM

In your dreams, the GOP never plays the way they should, they think people really care about how they do politics because they are out of touch and see no real threat to freedom

Conservative4ev on June 25, 2012 at 4:15 PM

Because if the left loses the court battle on ObamaCare next week and the presidential election in Novermber liberals – including you – will be a model of reasoned restraint and reflection?

Lefties like you have already declared democracy dead because “corporations” can exercise their right of speech.

gwelf on June 25, 2012 at 4:06 PM

Democracy isn’t dead, its for sale. Also corporations exist, so not sure why you put them in figurative “quotations.” Where we disagree is that a corporation is an individual, especially considering it is made up of many individuals. As far as I’m concerned, for a corporation to have first amendment rights it would have to be demonstrated that every individual in the corporations agreed with its political activities. Of course, we know that a small number of individuals excercise power over the corporation (and all the corporation’s employees in ways that make political dissent unpopular). How that entity could be equated with an individual human being before the law is a mystery to me.

libfreeordie on June 25, 2012 at 4:15 PM

For the first time I believe this court will uphold O-Care. Scalia’s frustrations over the attack on state sovereignty feels like a warning shot over what he knows is coming Thursday.

Just brace yourself. Hope I’m way off on this…

PA Guy on June 25, 2012 at 4:16 PM

An election win will solve many problems. A couple of wins will solve all these problems.

MTF on June 25, 2012 at 4:18 PM

Unfortunately we have no idea what Mitt will actually do. He radically changes his positions almost always in the direction of Obama. His spokesman says “Obama is doing a great job”. He was not in any way chastised for this statement so Romney must agree. Thus seems to me Mitt would continue his policies in large part.

NoMittObama 2012 or ever.

Steveangell on June 25, 2012 at 4:15 PM

This is bigger then Mitt, i get a kik out of all these Mitt threads, you understand once you lose your freedoms they do not come back right?
These Mitt threads mean nothing, Mitt means nothing, freedom means everything. Reagan is dead and buried and never coming back. There is no one ever going to be like him, God broke the mold, there is only squishy people now, who do not want to be labeled or branded homophobic or racist, or right wing extremist. If you are waiting for a messiah, he already came and was crucified.

Conservative4ev on June 25, 2012 at 4:18 PM

Ed, you are way off here. The point Scalia makes is that the redundancy in the Arizona law is not insignificant, because of the fact that Obama has PROVEN that the law is only as solid as the entity executing it. If the Feds will not enforce immigration laws, and Arizona has (seemingly redundant) laws on the books, they are at liberty to enforce said laws. However, this ruling gutted that premise, completely obliterating any pretense of state sovereignty we may have still had.

Federal supremacy applies when there is a difference between those whom immigration would keep out or let in different than the states. In this case, they are one in the same – Arizona just has a more complete enforcement of the laws.

The current lawless regime has decided to take the “execute” out of “executive”. They cannot force the states to do the same, though.

So long fair republic. You will be missed. I can’t believe it has come to this. We’re arguing over whether or not laws have to be enforced. God help us all.

CycloneCDB on June 25, 2012 at 4:19 PM

We are screwed dude, this country is done for, The Constitution was written by old dead white guys and history began with Obama. 44% of the American Public approve of this, therefore we will fall into the abyss of darkness and be in line with Europe where the parasitic, can’t make it on their own classes suck up all revenues and therfore have one socialistic utopia

Conservative4ev on June 25, 2012 at 4:13 PM | Delete | Delete and Ban

What the…?

Eeyore does’t even begin to describe it.

kingsjester on June 25, 2012 at 4:19 PM

PA Guy on June 25, 2012 at 4:16 PM

Hope you are too, but I’m getting the same feeling…

d1carter on June 25, 2012 at 4:21 PM

Writing for the majority, Justice Anthony M. Kennedy said states cannot try to act in an area in which the Constitution specifically grants powers to Congress — in this case, Article I, Section 8, Clause 4, which says Congress has powers over naturalization. That long has been interpreted to mean only the federal government can set immigration policy unless it specifically invites states to play a role.

So conservatives can now sue cities like SAn Fran. Justice Roberts basically just ruled that sanctuary cities are unconsitutional.

unseen on June 25, 2012 at 4:21 PM

Compared to Scalia’s eloquence, Obama is a carnival barker.

Compared to an average 13 year old’s eloquence, Obama is a carnival barker.

Dirty Creature on June 25, 2012 at 4:21 PM

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