Many of the attorneys and non-attorneys that I know - those that have an interest in constitutional law at least - have expressed the notion that Justice Scalia is quite an intelligent member of the court and, while they do not always agree with his rulings, those rulings and / or dissents generally proceed from a chain of constitutional logic that is frequently spelled out. His younger sibling in law, while less has been produced by him since his appointment, is currently viewed as almost equally capable from that standpoint (we'll leave his mouthing "wrong" to the President's SOTU aside for the purpose of this diary). And we can all pretty much dismiss the guy that is so far to the right that the actual document of the constitution is an afterthought to how the country SHOULD be governed in his vision of the land of wingnuttia.
So to the catapults.....
Justices Scalito (and faithful sidekick) dissented from today's ruling striking down Arizona's law that would authorize the State to prosecute Federal Immigration law in the state.
Justices Scalito (and trusty sidekick) dissented as such... "If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State," Scalia wrote in a dissent backed by Justices Samuel Alito and Clarence Thomas.
Continuing.... "To say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind."
And then the old 'if the game ever doesn't go my way, I should have never let you use my ball and bases....' "A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding? Today’s judgment surely fails that test. [...] If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State."
So let's see how we can maybe make an analogous counter argument to Scalito and faithful sidekick.
Let's start with the Sovereign State issue. Posit - Mexico attacks a Nato Country's tanker in the Gulf of Mexico and declares war on that country in a stroke of Military genius. We send a Navy battle group to the area in support of our commitment under Nato treaty - federal level law. Meanwhile at Jan Brewer's house, she can see Mexico from her back porch and the Mexicans are jumping up and down taunting her and all of Arizona, bringing in hundreds, no thousands, no hundreds of thousands (yeah, that's the ticket - hundreds of thousands) of troops, tanks, armored personnel carriers and they are all lined up on the border just waiting to blitzkreig Arizona's sorry ass. To top it off - a few of Jan's neighbors wandered across the border and are now held captive. Additionally, several known federal drug fugitives have escaped to the border region and are being protected by the Mexican Army. Jan actually believes they are encamped in US Territory and has alerted Washington and the Administration about the entire situation. The Commander in Chief (aka Senor Obama), has decided that he will negotiate a peaceful settlement with Mexico in the coming weeks and - as such - he will not be sending ANY part of the US military into Arizona to defend her border or to secure the release of the prisoners or to recapture federal fugitives. Governor Jan and the First Dude Sheriff Arpaio-ao decide that they are a sovereign state that needs protectin' so they rustle up a posse and head into the fray with weapons drawn and start shooting everything that looks like an enemy combatant. Is that really just okey dokey - constitutionally - Justices Scalito (and able sidekick)?
Let's continue with enforcing applications of federal law by the State is not contradicting federal law. Posit - Shortly after the country diffuses the Mexico - Nato situation, Syria invades Israel and we are again forced to honor our treaty obligations and come to Israel's aid. We do and Syria starts shooting down American fighter jets by the dozen, no hundreds, no thousands, no hundreds of thousands (yeah, that's the ticket - hundreds of thousands). The losses to our air force personnel are staggering. Congress declares war - redundant with the treaty but that's what Congress does these days to look like there is something that Congress isn't against. Boehner cries. Furthermore, Syrians are seen on Fox News every night (it's the same loop, I would swear it's the exact same loop every night but there's snow-covered Blue Spruce trees in the background and that one guy looks suspiciously like James O'keefe with a bandana and fake mustache, but hey - that news loop on hannity shows that they're torturing our fly boys over there). So Syrians are now enemy combatants and hated more than Nazi's in the 1940's. Meanwhile walking along the border from Mexico are a group of students wearing "Our Man Assad is the Bomb" t-shirts and looking suspiciously Syrian. They have set up camp and have a flagpole with the Syrian Flag flying in the breeze. Jan Brewer can see this from her back porch and calls Washington and the Administration who says to do nothing since they are about to negotiate a peaceful settlement. Governor Jan and the First Dude Sheriff Arpaio-ao decide that the war has come to Arizona and rustle up a posse and head into the camp with weapons drawn to capture these enemy combatants and make them POW's. Is that really just okey dokey constitutionally Justices Scalito (and trusty sidekick)?
Now finally, about that whole taking our ball and bat and glove and bases home with us when the game doesn't go our way thing.... If the Founders representing my New York had known that the state of Arizona would be admitted to the Union, enact bat-shit crazy laws that are a thinly veiled racist manifesto and that such documented racist manifesto would be defended by two Supreme Court Justice hacks and their faithful sidekick, we would never have joined the Union. And that apparently passes the okey dokey constitutionality test for Justices Scalito and their trusty sidekick.