There's no evidence that Roberts is a flip-flopper. He was appointed because of his even-handedness toward the law, and he was confirmed accordingly.
I'm more inclined to give him the benefit of the doubt.
Yesterday's editorial in the WSJ gave the entire court a thumbs-up for the decisions they made, and while I absolutely do NOT agree with the WSJ vis a vis illegal immigration (those guys basically throw their hands in the air and say, "Screw it - they're here already, might as well give 'em amnesty"), they gave a compelling account of the legal basis by which they reached their decision:
On a five to three vote, the Supreme Court knocked out much of Arizona's immigration law Monday—a modest policy victory for the Obama Administration. But on the more important matter of the Constitution, the decision was an 8-0 defeat for the Administration's effort to upset the balance of power between the federal government and the states.
In Arizona v. United States, the majority overturned three of the four contested planks of Arizona's controversial plan to have state and local police enforce federal immigration law. The Constitutional principles that Washington alone has the power to "establish an uniform Rule of Naturalization" and that federal laws pre-empt state laws are noncontroversial. Arizona had attempted to fashion state policies that ran parallel to the existing federal ones.
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The Arizona State Capitol grounds in Phoenix after the Supreme Court's decision on Monday.
Justice Anthony Kennedy, joined by Chief Justice John Roberts and the Court's liberals, ruled that the state flew too close to the federal sun. On the overturned provisions—like making it a misdemeanor to apply for a job without citizenship or a visa—the majority held that Congress had deliberately "occupied the field" under pre-emption doctrine, and Arizona had thus intruded on federal prerogatives.
However, the Justices said that Arizona police will be allowed to verify the legal status of people who come in contact with law enforcement. That's because Congress has always envisioned joint federal-state immigration enforcement and explicitly encourages state officers to share information and cooperate with federal colleagues.
Two of the three dissenting Justices—Samuel Alito and Clarence Thomas—agreed with this Constitutional logic but disagreed about which Arizona rules conflicted with the federal statute. The only major dissent came from Justice Antonin Scalia, who offered an even more robust if idiosyncratic defense of state prerogatives going back to the Alien and Sedition Acts. (Justice Elena Kagan recused herself.)
The 8-0 rebuke to President Obama turns on what Justice Samuel Alito describes in his dissent as "an astounding assertion of federal executive power." The White House argued that Arizona's laws conflicted with its enforcement priorities, even if state laws complied with federal statutes to the letter. In effect, the White House claimed that it can nullify any otherwise legitimate state law that it disagrees with.
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Editorial page editor Paul Gigot on the various ways the Supreme Court could rule on ObamaCare. Photo: Getty Images
Some powers do belong exclusively to the federal government, and control of citizenship and the borders is among them. But if Congress wanted to prevent states from using their own resources to check immigration status, it could. It never did so. The Administration was in essence asserting that because it didn't want to carry out Congress's immigration wishes, no state should be allowed to do so either. Every Justice rightly rejected this remarkable claim.
One lesson of this case is that the Roberts Court does not practice the radical activism of liberal myth. Its very careful jurisprudence is aimed at protecting the U.S. federalist system, in which states and the federal government share sovereignty and both possess rights that the other is bound to honor.
We happen to share the Obama Administration's desire for a welcoming, nonpunitive immigration policy, but it can't accomplish that by asserting power it doesn't have. Full marks to the Court for striking the proper Constitutional balance.
WSJ Online
