On Monday, the Supreme Court in Arizona v. United States struck down three of four challenged provisions of Arizona's S.B. 1070, eliminating the law's penalties and therefore leaving a shell of the former law in place. Not satisfied with this overwhelming victory, the Justice Department has helpfully set up a hotline for Arizona citizens who feel their "civil rights" have been violated by the "show me your papers" provision of the law, the one provision upheld. In time, the feds will likely go four for four.
What's important, though, is what the majority opinion written by Justice Kennedy tells us about what can be done regarding the nation's illegal immigration problem. The import of Kennedy's opinon is simply this: The federal government is charged by the Constitution to regulate immigration and has established a complex and exhaustive regulatory scheme for immigration matters, and therefore most state laws with any real effect on illegal immigration will be "preempted" by the federal law in this area, regardless of whether the state laws actually directly conflict with federal law. (None of the S.B. 1070 provisions at issue actually do conflict with federal law, which its drafters were careful to ensure.) Lost in Kennedy's highly technical opinion (they always are when the result is so absurd), is the fact that the federal government's complex and exhaustive immigration regulatory scheme is selectively enforced at best and actively undermined at worst by federal officials, leaving states at the mercy of Democratic Party identity politics (and to a lesser extent, the Republican Party's alliance with big business).
This point was made especially clear by President Obama when he recently announced that the federal government would stop enforcing immigration laws against illegal immigrants under 30 who have not committed serious crimes (except, of course, violating federal immigration law, which no one can now say is serious). Justice Scalia, in his powerful dissent, could not resist using the President's euphemistic "deferred action" policy to illustrate exactly what is going on here, when he wrote, "So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?" The implicit answer in Kennedy's opinion is an unequivocal "yes."
The only alternative to federal enforcement of immigration law is apparently chaos at the border as it now exists. States can do nothing. Congress can do nothing. The courts can do nothing. The only means to stem (or reverse) the tide of illegal immigration is the presidency and its massive regulatory/enforcement apparatus. For the next several years then, the only hope is a President Romney that will actually keep his promises on illegal immigration. As readers of Chronicles know, that's cold comfort.