It looks like Scalia had another meltdown in his dissent today on SB 1070:
The most remarkable opinion in the case, however, is Justice Scalia’s solo dissent. Like Thomas, he believes that the Arizona law should be upheld in its entirety. Unlike Thomas, he took not taken a narrow view of what is required for state law to be preempted. In keeping with his clownish performance at oral argument, Scalia makes no attempt to conceal the political values that motivated this contradiction with his past jurisprudence. As he did at oral argument, he begins by asserting that “[a]s a sovereign, Arizona has the inherent power to exclude persons from its territory.” This conflation of a nation-state and a constituent part of a nation state is utterly inappropriate, and the qualification that Scalia goes on to add—”subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress”—completely swallows the first statement.
Given such constitutional requirements as the federal right to travel, American states are simply not “sovereign,” and any reasoning based on this principle has no chance of withstanding scrutiny. Scalia’s dissent continues in this vein, defending Arizona’s law by making policy arguments against Congress and the Obama administration. “Must Arizona’s ability to protect its borders yield to the reality that Congress has provided inadequate funding for federal enforcement—or, even worse, to the Executive’s unwise targeting of that funding?” asks Scalia. Actually, yes—our constitutional framework does not allow Arizona to premept federal law if it doesn’t like the way it’s being exercised, and Arizona does not in fact have the inherent right to exclude people that the federal government does. And things get even worse as he tries to expand on his theory that the Supremacy Clause is inapplicable if Congress exercises its authority in a way Antonin Scalia doesn’t like:
As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that gave rise to the suit. Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so.
Amusingly, Scalia has just released a co-authored book criticizing many of his colleagues for not adhering to what he considers the only acceptable consideration that can go into legal reasoning—the text of the relevant document as it was construed at the time of its ratification. I had no idea that the original meaning of the Constitution and federal statutes could be best discerned by listening to The Michael Savage Show.
After he brought up the broccoli mandate during the ACA debate, I guess he’s just decided to go full metal wingnut. I mean, what are we gonna do? Fire him?