In his fervent defense Wednesday of Arizona’s right to crack down on illegal immigration, Justice Antonin Scalia likened immigration enforcement to crackdowns on bank robbers.
“What’s wrong about the states enforcing federal law?” Scalia said during his aggressive questioning of U.S. Solicitor General Donald Verrilli. “There is a federal law against robbing federal banks. Can it be made a state crime to rob those banks? I think it is.”
The Reagan-appointed justice mocked the Obama administration’s argument that S.B. 1070 unconstitutionally forces the federal government to re-prioritize its enforcement resources and go after undocumented people who are not dangerous.
“But does the attorney general come in and say, you know, we might really only want to go after the professional bank robbers?” Scalia said. “If it’s just an amateur bank robber, you know, we’re going to let it go. And the state’s interfering with our whole scheme here because it’s prosecuting all these bank robbers.”
The line drew uncomfortable laughter and some gasps in the courtroom. It’s the sort of analogy that makes it easier for immigrant-rights advocates to accuse their opponents of lacking humanity. The vast majority of undocumented immigrants, advocates often have to point out, are not criminals and are merely trying to make a living for themselves and their families.
Angela Kelley, an immigration policy expert at the liberal Center for American Progress, said Scalia’s analogy is also wrong.
“Justice Scalia is funny but his analogy is false,” Kelley told TPM. “As a justice, he knows that there are things only the federal government can do, things the states can do and some things both can do. In this case only the feds can deport unauthorized immigrants. In the case of bank robbers, either the states or the feds can arrest, prosecute and jail them. I don’t think Justice Scalia is advocating for each of the 50 states to start deportation programs.”
Scalia sympathized with a radical interpretation of the Constitution where states may craft immigration laws as they see fit to protect their borders — none of the other justices went so far. Immigration policy is overwhelmingly viewed as federal turf, and even Arizona accepted that premise. Instead, the state argued that it was cooperatively assisting, not encroaching on, federal immigration enforcement. But Scalia pressed on nonetheless.
“What does sovereignty mean it it does not include the ability to defend your borders? The states can police their borders,” he said, suggesting that the White House opposes S.B. 1070 because it “doesn’t want [immigration] law enforced so rigorously, and that preempts the state from enforcing it vigorously.”
The justice’s hostility toward critics of the Arizona law was on full display Wednesday.
When Verrilli argued that international concerns factor into the federal government’s supremacy over immigration policy, Scalia angrily interrupted, “So we have to enforce our laws in a manner that will please Mexico. Is that what you’re saying?”
