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Vice President Scalia?

By Paul Choiniere

Publication: theday.com

Published 06/26/2012 12:00 AM
Updated 06/26/2012 05:46 PM

OK, now that I have your attention, I admit I don't really expect Antonin Scalia to give up one of the most influential jobs in Washington, a Supreme Court justice, to run for perhaps the least influential, vice president. But listening to Justice Scalia's angry dissent to the Supreme Court's ruling in "Arizona vs. United States," he sounded like someone auditioning for a place on the Republican ticket or perhaps a run for office himself. I'm suprised he did not dress up in tea-party colonial garb to deliver his dissent.

Court observers say they can recall no precedent for a justice to refer in a dissent or opinion to a political dispute that took place entirely outside of the case record and after the court had heard all arguments. Juries are required to reach verdicts based solely on facts presented at trial, not what they hear or read outside court proceedings, but Justice Scalia apparently holds himself to a different standard.

Scalia wrote:

"After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants. The husbanding of scarce enforcement resources can hardly be the justification for this, since those resources will be eaten up by the considerable administrative cost of conducting the nonenforcement program, which will require as many as 1.4 million background checks and biennial rulings on requests for dispensation. The President has said that the new program is "the right thing to do" in light of Congress's failure to pass the Administration's proposed revision of the immigration laws. Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of federal immigration law that the President declines to enforce boggles the mind."

It also boggles the mind that Scalia would go there. Several Republican lawmakers and attorney generals have said they may challenge the constitutionality of the president using executive fiat to give de facto legal standing to immigrant children who are in the United States illegally under federal law. Should that issue reach the Supreme Court, Scalia will certainly face calls for recusal since he has clearly made his mind up, without having heard the facts and arguments. It is an accepted ethical standard that appellate judges should not comment on matters that may come before them. (No one, however, can force a Supreme Court justice to recuse him or herself.)

Scalia also climbed into his time machine to suggest that if they knew such limits were being placed on the ability of states to enforce immigration standards the "delegates to the Grand Convention would have rushed to the exits." (He didn't say, however, what the delegates would have done had they realized they were outlining God-given rights not just for individuals, but for soulless, bloodless, ageless corporations.)

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