The transcripts aren’t out yet, but Lyle Denniston reports on the Justices’ reactions to the arguments in the federal lawsuit over Arizona’s SB 1070:
Justice Antonin Scalia on Wednesday was the fervent champion of states’ authority, in the wake of what he perceived as a failure of the federal government to keep illegal aliens out of the country, to adopt their own policies that at least seek to make sure that those without immigration papers cannot get jobs. What Scalia found in federal law that would allow that was a provision in which Congress, while taking over much of the field of worker verification, told states that they still had a role to play.
The Constitution says that the federal government has jurisidiction over immigration matters. There is no exception for what Justices might perceive as a “failure of the federal government to keep illegal aliens out of the country.” There is no clause outlining that Justices, if they feel like maybe the government isn’t doing a good enough job on immigration, can suddenly decide that the Constitution no longer applies. That’s a political response, one that reflects Republicans’ partisan defenses of SB 1070, but it has nothing to do with whether or not the law itself is unconstitutional.
Originalism makes for great rhetoric. But in practice, originalism simply means that when a blunt, literal interpretation of the Constitution reflects conservative political priorities, it’s the only acceptable outcome. But when the Constitution clearly enumerates the federal government’s power to “establish a uniform rule of naturalization,” it’s time to bust out the penumbras. And as Denniston explains, because Elena Kagan has to recuse herself, even if Anthony Kennedy decides not to play along with the court’s Republican wing the best possible outcome is a 4-4 split that would affirm, at least in part, SB 1070’s constitutionality.
