In a nutshell, the Supreme Court invalidated individual State efforts to enforce immigration laws. States can detain individuals suspected of being present in the US illegally if encountered in the course of other enforcement acts, but if the Federal government ignores them, they must be released. Basically, if the Federal government chooses to not enforce its own laws, States are helpless.

Even though I don’t agree with the substance of this case, I prefer open borders, I think this ruling was a very bad one simply because the rule of law is at the heart of this issue. In this decision the court relies heavily on the enumerated power of the Federal government to “establish a uniform Rule of Naturalization” in its rationale for ruling against the State of Arizona. The question the Court should have answered is not whether the Federal law preempts State law, because there was no conflict here with the “uniform rule,” but what happens when the Federal government does not enforce its own laws. In the case of non-enforcement or selective enforcement, the exercise of that power is no longer uniform as required by the Constitution, but becomes arbitrary and capricious and is unconstitutional in result.

The word uniform means exactly what it says. It means the rule applies to everyone, everywhere, which is a basic tenant of the rule of law and equal justice that doesn’t just apply to immigration, but everything else. What the Supreme Court has done with this ruling is to institutionalize selective application of any law based on Executive will to enforce it. That means that any law, not just those pertaining to immigration, can be selectively enforced wherever the supremacy clause has been invoked; and this ruling cannot be reconciled with the 14th amendment that requires equal application of the laws.

The only recourse the State of Arizona, or any other state, has now is nullification. If it truly believes that illegal immigration is endangering its citizens it should, and has an obligation to nullify both the Immigration and Naturalization Act, and the Supreme Court ruling against it on the grounds of unconstitutionality in fact. But it must go farther than that because regardless of the actions of the Federal government in this regard, there will be plenty of other issues regarding other laws and it needs to let the government know that it won’t and American citizens won’t tolerate the despotism of selective justice.

PS: For those who think I’m radical for advocating nullification, I’d just like to point out that the Constitution is only a piece of paper and it can’t enforce itself. We cannot rely only on the Federal government to determine what the law is because it will come down on the side of expanding its own power nearly every time. In order to preserve the essence of the rule of law, which includes our Constitution, and our very republic, the States must provide a check on that power. Their activism is the only thing that can separate us from the slow slide into Executive tyranny and despotism because as history has shown, and is evident in this case, the Supreme Court is more political than it is concerned with preserving the character of the political compact made between the people and the States in order to constitute our government and ensure the protection of our liberty.

PPS: I don’t have a warm-fuzzy that what we thought might happen with the rulings on ObamaCare based on the disposition of the oral arguments, that it is likely to be stuck down in full will actually happen.  If these “justices” can hand down a ruling such as this one immigration, very loosely based in some enumerated power even though the exercise of it is arbitrary, there is little hope that it will curtail exercise of regulation of commerce that it has allowed to become arbitrary.

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