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.