Questions remain on the Healthcare ruling of June 28, 2012 and the reading of Chief Justice Roberts sole decision that runs contrary to his alleged confirming colleagues

http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf

US Supreme Court Health Care Law Decision

On June 28, 2012, the United States Supreme Court rendered its decision regarding the forcing of every American Citizen to either:

1)    forcibly buy Health Insurance or pay a penalty not less than $695 for those making $27,800 annually and below or 2.5 % of one’s annual income (whichever is greater) – or

2)    go on Medicaid or some other Government subsidized Healthcare if your income is 133% or less that of the poverty level.

You are given no other options…or so we are told.  But considering that there are really 3 classes of Justice dissents involved, I have to ask…why should we accept that the 5 to 4 really passed when the vote was actually 4-4 (1)?

On page 7 of Roberts Opinion, he writes:

Beginning in 2014, those who do not comply with the mandate must make a “[s]hared responsibility payment” to the Federal Government. §5000A(b)(1). That payment, which the Act describes as a “penalty,” is calculated as a percentage of household income, subject to a floor based on a specified dollar amount and a ceiling based on the average annual premium the individual would have to pay for qualifying private health insurance. §5000A(c). In 2016, for example, the penalty will be 2.5 percent of an individual’s household income, but no less than $695 and no more than the average yearly premium for insurance that covers 60 percent of the cost of 10 specified services (e.g., prescription drugs and hospitalization). Ibid.; 42 U. S. C. §18022. The Act provides that the penalty will be paid to the Internal Revenue Service with an individual’s taxes, and “shall be assessed and collected in the same manner”

On page 10 of Chief Justice Roberts Opinion, he writes:       

The Affordable Care Act expands the scope of the Medicaid program and increases the number of individuals the States must cover. For example, the Act requires state programs to provide Medicaid coverage to adults with incomes up to 133 percent of the federal poverty level, whereas many States now cover adults with children only if their income is considerably lower, and do not cover childless adults at all. See §1396a(a)(10)(A)(i)(VIII). The Act increases federal funding to cover the States’ costs in expanding Medicaid coverage, although States will bear a portion of the costs on their own. §1396d(y)(1).

Justice Roberts and others do NOT factor in that the Insurance Industry is unhindered from raising current pricing levels by up to 300% of current costs.  The use of $695 as an expected 60% of annual costs gives us a minimum $1,390 annual expectation of premiums for a single individual; for 10 specified services in the package deal.   That is $115.83 a month roughly.  But what is to stop the Insurance Carriers from gouging the public who are now forced to buy, so as to increase their bottom line and give themselves fat bonuses?  There is no stop gap regulation to prevent cost increases to $347.50 per month per individual, and a coercive threat by these abusers to scream at their victims that “if you don’t pay your fair share, I’m calling the cops [or an appropriate Government enforcement Agency]  and you’re going to jail and lose your Citizenship. Pay up or kiss your life goodbye Mother-f**ker.”  Under the Commerce Clause as its operational justification, that is now a very possible and even probable scenario if Congress does not lawfully  scrap it, even if just by a veto proof majority.  

The majority opinion of Justices Ginsburg, Sotomayor, Breyer and Kagan (who was biased for Healthcare as its lobbyist and was openly predetermined to rule for it, and should have been forcibly recused) state that we are to adopt the Commerce Clause in ruling on the Constitutionality of Healthcare.  They reject the Mandate argument that it is a tax.  Chief Justice Roberts says that the Court and those who enforce it should view its simply as a tax, that way you are precluded from losing your United States Citizenship rights if you refuse to buy it, which he examples as possible under the observational use of the Commerce Clause as to why it passed.

In being given option A or B, just what do you think Obama would use to enforce the Healthcare Mandate?  It will be the Commerce Clause.

 On Pages 23-24 of his Opinion, Roberts states in regard to the application of affirming the Healthcare Law on the basis of the Commerce clause, the ff.:

"Amicus argues that even though Congress did not label the shared responsibility payment a tax, we should treat it as such under the Anti-Injunction Act because it functions like a tax. It is true that Congress cannot change whether an exaction is a tax or a penalty for constitutional purposes simply by describing it as one or the other.

While Congress’s authority under the Commerce Clause has of course expanded with the growth of the national economy, our cases have “always recognized that the power to regulate commerce, though broad indeed, has limits.” Maryland v. Wirtz, 392 U. S. 183, 196 (1968). The Government’s theory would erode those limits, permitting Congress to reach beyond the natural extent of its authority, “everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.” The Federalist No. 48, at 309 (J. Madison). Congress already enjoys vast power to regulate much of what we do. Accepting the Government’s theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal

Government. 6

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6      In an attempt to recast the individual mandate as a regulation of commercial activity, JUSTICE GINSBURG suggests that “[a]n individual who opts not to purchase insurance from a private insurer can be seen as actively selecting another form of insurance: self-insurance.” Post, at 26. But “self-insurance” is, in this context, nothing more than a description of the failure to purchase insurance. Individuals are no more “activ[e] in the self-insurance market” when they fail to purchase insurance, ibid., than they are active in the “rest” market when doing nothing. "

On page 25 of his Opinion, Chief Justice Roberts argues:

“The Government repeats the phrase “active in the market for health care” throughout its brief, see id., at 7, 18, 34, 50, but that concept has no constitutional significance. An individual who bought a car two years ago and may buy another in the future is not “active in the car market ”in any pertinent sense. The phrase “active in the market” cannot obscure the fact that most of those regulated by the individual mandate are not currently engaged in any commercial activity involving health care, and that fact is fatal to the Government’s effort to “regulate the uninsured as a class.” Id., [Brief for the United States] at 42. Our precedents recognize Congress’s power to regulate “class[es] of activities,” Gonzales v. Raich, 545 U. S. 1, 17 (2005) (emphasis added), not classes of individuals, apart from any activity in which they are engaged, see, e.g., Perez, 402 U. S., at 153 (“Petitioner is clearly a member of the class which engages in ‘extortionate credit transactions’ . . .” (emphasis deleted)).

The individual mandate’s regulation of the uninsured as a class is, in fact, particularly divorced from any link to existing commercial activity.”

On page 43 of his Opinion, Roberts cites that if we allow for the operation of the Commerce Clause to govern why Healthcare is a legal mandate, then failure to purchase or do as Congress directs, can effectually strip one of their Citizenship under the Constitution of the United States. 

"Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs. An individual who disobeys may be subjected to criminal sanctions. Those sanctions can include not only fines and imprisonment, but all the attendant consequences of being branded a criminal: deprivation of otherwise protected civil rights, such as the right to bear arms or vote in elections; loss of employment opportunities; social stigma; and severe disabilities in other controversies, such as custody or immigration disputes."

And because of this, we should take the power of Congress to levy a tax approach, because if we do, then you lawfully pay a penalty or “higher tax” for a non-purchase, while those who buy health insurance are placed in a bracket paying “lower taxes”.  “the only thing they may not do,” says Roberts on page 44 supra of his “Opinion”, “is not buy health insurance and not pay the resulting tax.”   

Again, there is NO majority Consensus of Opinion or Decision that requires me to buy Health Insurance on any single point Constitutional Justification. 

If you can be forced to buy health care, you can also be forced to buy life (which is really death) insurance, followed by mandatory fire insurance whether you own a home, rent an apartment, live out of motels or your car.  In effect, taxes and Commerce purchase requirements could morph into an endless cycle of mandatory taxes and/or purchases that leave you penniless and in debt.  There could be a day in which you have to buy mandatory ambulatory response insurance, police protection insurance, or mandatory environmental cleanup insurance, or what have you.  In fact, under this de facto split consensus if the People of the United States allow it to stand when it does not so stand, we can expect an Agenda 21 “sustainable development” passage of a carbon Footprint tax whereby you, and your family and your pets are taxed or fined x-number of dollars a year just for breathing.

      Why pay a tax, why be forced to purchase a product you neither want nor need, why submit to a ruling that never passed by majority consensus as legal? Part III-B which commands people buy or purchase insurance based on one agreeable specificity of the United States Constitution that would so enable it, did NOT pass by majority, whether Justice Roberts separated himself from 4 concurring Justices or whether Justice Ginsburg separated herself…it still did NOT pass on any one point of Law.  

Question:  Did the Healthcare Law regarding Part III-B (the mandatory purchase or pay the fine requirement) legally really pass United States Supreme Court Muster? 

NO CONSENSUS as to what Constitutional Provision acted as the engine of Healthcare was ever decided upon in majority.  Tens of thousands of attorneys need to put down their paper, stop trusting hearsay, and read the decision carefully and thoroughly for themselves.  The Opinion of Roberts was just that, an opinion…and oddly enough, as regarding the Healthcare Law as only Constitutional when it is regarded as a tax was the opinion of 1.  Are we to take that the opinion of just one Court Justice now trumps the contrary opinions of the other 8?  No.  Of course we should NOT.

      On its face, the Healthcare law, and any law signed by Barack Hussein Obama II, not to mention his other legal names or aliases, under a non-judicial activist United States Supreme Court would be subject to automatic overturn just on the basis that he cannot meet the minimum proof requirements of being a United States Natural Born Citizen per Article 2, Section 1, Clause 5 of the Constitution of the United States; United States v. Schwimmer    279 U.S.  644 (1929) @ 649-650; Bute v. Illinois 333 U.S. 640 (1948) @ 653; anyone who can successfully sue Obama based on Article III standing [1], could under the Rule of Law have Obama forcibly resign from Office.  But we are no longer under a Judicial Court, we have 5 Judicial activists (two illegally appointed by a Usurper), with the Supreme Court Justice now legislating and rewriting laws from the Bench as a runaway Progressive, a rogue, a traitor to the Constitution of the United States.

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[1]  An example of who has Article III standing to sue, is the Brian Terry Family, the family of the slain border agent killed as a direct result of Obama restarting a border program with all the safeguards removed, hindrances to the direct safety of our own Law enforcement attached by Obama or his Administrators, and then engaging in illegal operations in order to create a pseudo-crisis to strip United States Citizens of their Second Amendment rights to bear firearms.  

June 25, 2012 letter of Representative Issa to Obama

http://www.scribd.com/nationaljournal/d/98293331-Rep-Issa-Letter-to-Obama-Re-Executive-Privilege

Rpresentative Issa with Sean Hannity the ff. day.

There are an additional 130,000 pages of information yet being WITHHELD by Obama and Holder, now under the color of authority as an "executive privilege" that does not apply to Criminal Activity, Criminal Conspiracy, and Treason.

http://dailycaller.com/2011/09/02/new-fast-and-furious-details-indicate-govt-cover-up-white-house-involvement/

The Daily Caller reported in September 2011 that:

... emails obtained by the Los Angeles Times appear to show senior Obama administration and White House officials were briefed on the gun-walking operation. The three White House officials implicated by the LA Times’ reporting are Kevin M. O’Reilly, the director of North American Affairs for the White House national security staff; Dan Restrepo, the president’s senior Latin American advisor; and Greg Gatjanis, a White House national security official.

The emails were sent between July 2010 and February 2011, before the scandalous ATF program was exposed, according the LA Times.

The LA Times says a senior administration official denies that the emails which lead Fast and Furious ATF agent William Newell sent to O’Reilly — who later briefed Restrepo and Gatjanis –included details on “investigative tactics” used in the program. By “investigative tactics,” the White House means how ATF agents facilitated the sale of firearms to drug cartels via “straw purchasers,” or people who could legally buy guns in the U.S. but did so with the intention of selling them to individuals who would traffic them to Mexico.

Those emails apparently show Newell and O’Reilly discussing how the program was affecting Mexico.

Another explosive new detail that emerged on Thursday was a set of documents showing senior officials in Phoenix attempting to cover up a connection between Fast and Furious weapons and U.S. Border Patrol agent Brian Terry’s death.

In a letter sent to Ann Scheel, the new acting U.S. Attorney for Arizona, House Oversight committee chairman Rep. Darrell Issa and Sen. Chuck Grassley wrote that high-ranking Phoenix officials tried to “prevent the connection [between Terry’s death and Fast and Furious weapons] from being disclosed.”

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Did the Court see to a Consensus of Affirmation  Aequam Servare Mentem (a Consensus of Affirmation keeping an even mind)?  No.  A minority opinion said that it can be legal if you rule that only this part of the Constitution over here is used, but not that part over there; while another minority opinion said, No, you must use that part of the Constitution over there but you cannot use this part of the Constitution over here.  Effectually, by majority, Healthcare as a mandate, when challenged by closer examination, I would argue, appears to have been more  struck down than not, regarding the forced purchase or pay mandate…despite claims to the contrary, even by what the Media has thus far gleaned from the syllabus and Opinion of the Chief Justice.

Syllabus:

[Page 3] “ CHIEF JUSTICE ROBERTS concluded in Part III-B that the individual mandate must be construed as imposing a tax on those who do not have health insurance, if such a construction is reasonable.

     The most straightforward reading of the individual mandate is that it commands individuals to purchase insurance.  But, for the reasons explained, the Commerce Clause does not give Congress that power.”

On page 1 of the Opinion of Roberts, C.J., we read that:

“CHIEF JUSTICE ROBERTS announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-C,

An opinion with respect to Part IV, in which JUSTICE BREYER and JUSTICE KAGAN  [whom should have recused herself or been forced into recusal] join,

And an opinion [by himself, alone] with respects to Parts III-A, III-B, and III-D.”

That is, in respect to Parts III – A, III-B, and III –D, the Court voted it down 8-1.  In respects to Part IV, the vote is defeated by 6 – 3, and because Justice Ginsburg and Sotomayor join in direct conflict of what Constitutional Provision and total conflict of what the application of the Law is in regard to Healthcare, we must view that Parts I,II, III-C fail also.

In the Opinion of Ginsburg, J., we find that JUSTICE GINSBURG, JUSTICE SOTOMAYOR, JUSTICE BREYER, and JUSTICE KAGAN “join as to Parts I, II, II, and IV” with the exception that Justices Ginsburg (and Sotomayor) while agreeing to Parts I, II, III –C and joining Justice Roberts opinion, Ginsburg then goes on to make a dissent as to what Law and Provision of the Constitution by which any concurring opinion she has would be based on.  In effect, Justice Ginsburg (and Justice Sotomayor joining her) cast a defeated vote of 2 against 7 that by the Commerce Clause alone is Healthcare Constitutional.

On page 59 of his opinion,  in 567 U.S. ________  (2012), Justice Roberts writes:

“The Framers created a Federal Government of limited powers, and assigned to the Court the duty of enforcing those limits.  The Court does so today.  But the Court does not express any opinion on the wisdom of the Affordable Care Act.  Under the Constitution, that judgment is reserved to the people.”

If by one vote, or even a minority vote, you can have the Commerce Clause go into effect, the regulation of inactivity of not giving a tithe tax to this or that Progressive Special Interest pot, whether you are penalized for not buying gas because you do not own a car, or not buying milk every time you buy groceries because you do not drink that much of it, or not buying whatever the Government mandates you should buy even if you have no need or want of it…where does it end?  And what of the effect of activating all previous Supreme Court dissents as lawful interpretations, so that if a Justice in minority says any one thing at any time in the past, we may now take that interpretation as in equal force?  This is anarchy, and that will be John Roberts’s legacy as a Progressive subversive that needs to be removed from the Bench as being in violation to his oath to uphold and preserve the Constitution of the United States and rule within those bounds.

By his own admission, in the first page of his dissent from Justice Ginsburg on page 31, Roberts states:

“…it is well established that, if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so.”    

First of all, Courts should adopt the meaning by a majority consensus; otherwise the meaning that is in debate as to what is or is not constitutional fails.  Further, by majority, both the tax iso-interpretation (that interpretation which is read into the text) and the exegetical interpretation using the Commerce Clause are BOTH defeated as unsound.    Roberts continues.

 Justice Story said … 180 years ago: “No court ought, unless the terms of an act rendered it unavoidable, to give a construction to it which should involve a violation, however unintentional, of the constitution.”  Parsons v. Bedford, 3 Pet. 433, 448-449 (1830).  Justice Holmes made the same point a century later: “[T]he rule is settled that between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.”  Blodgett v. Holden, 275 U.S. 142, 148 (1927) (concurring opinion).”

Consider this: By a Majority Vote, whether we attribute it as 8-1, or 5-4, the United States Supreme Court rejected the Healthcare mandate as a tax. The absolute dissenting votes were Justice Ginsburg, Justice Scalia, Justice Thomas, Justice Kennedy, and Justice Alito.   And yet, whether by a single vote by a Chief Justice or a minority vote not enough for passage, we are supposed to call the Healthcare Mandate Law as long as we call it a Tax?  Chief Justice Roberts cited Article 1, Section 1, Clause 8 of the Constitution, of the right of Congress to “lay and collect taxes”; the majority of the Court’s 9 Justices of the Court REJECTED that analysis.

Justice Ginsburg in her opinion very clearly and specifically specified that she did NOT vote for passage of Parts I, II, III-C of the Healthcare Mandate except it be interpreted as legal by means of the use of the Commerce Clause, not as a tax. Even if arguing for a passage of the Healthcare Mandate, as a Dissent on the mechanics of how and why the Healthcare Mandate should be legally interpreted in direct or in a diametrical opposition to the view of John Roberts, it is still a DISSENT against Roberts’ view, and places Roberts, again, in the minority.

 In other words, I would argue that Justice Ginsburg’s vote of distinction invalidates the Healthcare Mandate enforcement and the decision did NOT de facto pass under jurisprudence.  You cannot have a decision that says this is legal only because it is a tax over here, and an arguing decision that opposes the decision saying it is legal only because of the Commerce Clause over there.  They must entirely agree as to at least the legal citation for reason of its passage or both opinions will illegally be enforced as Law.  The “only” actuality handcuffs and prevents a legal application of the Healthcare Mandate as Law of the Land.  There is no claim that it is legal because of BOTH reasons by Justice Ginsburg, which would push it pass the threshold as legal because it is a tax AND….   There is no claim by Justice Roberts that the Healthcare Mandate is legal for both reasons, that because as Ginsburg argues the Commerce clause kicks in AND…  That did NOT happen.  Clearly, no majority opinion passed the Healthcare mandate as a law by one legal citation of the United States Constitution or another.  Roberts spent more than 14 pages, from page 31 -45,  arguing this point AGAINST Justice Ginsburg’s justification based on the Commerce Clause only and NOT by any reasoning Roberts was taking, wherewith only by means of a tax, and the power of Congress to tax, could Congress have the legality to pass this legislation and expect it to be upheld as law…(even if it was not their intent, that is how I John Roberts am re-intending their idiocy for not having the right intent in the first place).

On Wednesday, March 28, 2012  10:19 a.m. ff.

   IN THE SUPREME COURT OF THE UNITED STATES - - - - - - - - - - - - -

 NATIONAL FEDERATION OF INDEPENDENT : BUSINESS, ET AL.,

:

Petitioners

:

No. 11-393

v.

:

KATHLEEN SEBELIUS, SECRETARY OF

:

 HEALTH AND HUMAN SERVICES, ET AL.

:

 

ORAL ARGUMENT OF PAUL D. CLEMENT ON BEHALF OF THE PETITIONERS

Page 4 -

MR. CLEMENT: Mr. Chief Justice, and may it please the Court:

If the individual mandate is unconstitutional, then the rest of the Act cannot stand. As Congress found and the Federal Government concedes, the community-rating and guaranteed-issue provisions of the Act cannot stand without the individual mandate.

Page 5 -

JUSTICE SOTOMAYOR: Counsel….[i]n one instance -- and we might or may not say that it's unconstitutional -- Massachusetts passed the mandatory coverage provision.

Page 6 -

MR. CLEMENT: … Finding (I), which is 43a of the Government's brief, in the appendix. Congress specifically found that having the individual mandate is essential to the operation of guaranteed issue and community rating.

JUSTICE SOTOMAYOR: … I'm looking at it. The exchanges. The State exchanges are information gathering facilities that tell insurers what the various policies actually mean. And that has proven to be a cost saver in many of the States who have tried it. So, why should we be striking down a cost saver –

Page 7 -

JUSTICE SOTOMAYOR: I guess, on the bottom line, is why don't we let Congress fix it?

Pages 7 to 8 –

Congress could look at it…and… could choose to fix what it has.    We're not declaring -- one portion doesn't force Congress into any path.

Page 8

JUSTICE  SCALIA: Well, there's such a thing as legislative inertia, isn't there?

MR. CLEMENT: Well, that's exactly –

JUSTICE  SCALIA: I mean -

MR.CLEMENT: -- what I was going to say, Justice Scalia, which is I think the question for this Court is -- we all recognize there's legislative inertia. And then the question is what's the best result in light of that reality?

Page 9 -

MR. CLEMENT: And I agree. We're simply asking this Court to take on, straight on, the idea of the basic remedial inquiry into severability which looks to the intent of the Congress -

JUSTICE SCALIA: Yes, I wanted to ask you about that. Why do we look to the -- are you sure we  [should] look to the intent of the Congress?

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So what was the intent of Congress in reading and discussing the language of the Bill?  Or is it that the majority of those who voted for it had no clue as to what the 2,700 plus page Bill entailed? 

June 28, 2012 

On Page 12 of his Opinion, Roberts states:

“Congress, however, chose to describe the “[s]hared responsibility payment” imposed on those who forgo health insurance not as a “tax,” but as a “penalty.” §§5000A(b), (g)(2). There is no immediate reason to think that a statute applying to “any tax” would apply to a “penalty.”

Congress’s decision to label this exaction a “penalty” rather than a “tax” is significant because the Affordable Care Act describes many other exactions it creates as “taxes.” See Thomas More, 651 F. 3d, at 551. Where Congress uses certain language in one part of a statute and different language in another, it is generally presumed that Congress acts intentionally. See Russello v. United States, 464 U. S. 16, 23 (1983).”

But DID Congress act intentionally on the specificity of language so as to distinguish tax from penalty, et cetera?   NO.

Then Speaker of the House, Nancy Pelosi:  “We have to pass the

[Health Care] Bill so that you [we]  can, uh, find out what’s in it”

Like many other members of Congress whose refusals to read the Healthcare Bill along with Nancy Pelosi’s condescending arrogance spawned the creation of the TEA Parties as a counter-protest movement to Representatives who felt they had dictatorial powers and that WE THE PEOPLE were to serve them, Representative John Conyers had no intention of ever reading the Healthcare Bill he would vote passage for to know what was in it.

John Conyers states to the effect that Congress refuses to read every bill.

Therefore, the intent of Congress in regard to the Healthcare Bill signed into Law (without being read) is then what?

Answer:  Unconstitutionality by means of Criminal Negligence and Irresponsibility.  Or in the vulgar: “We don’t know what the **** we’re passing, but let’s pass it into Law anyway.”

And that is what Chief Justice John Roberts re-legislated from the bench, a non-intent intent of Congress by Judicial Activism. 

Congress didn’t know what was in the Healthcare Bill…

Congress didn’t care what was in the Healthcare Bill…

Congress as run by the Democratic Party stifled debate and in lock-step passed a bill with language they refused to read or familiarize themselves with.  The only thing that mattered was its passage, damn the consequences inside the language of the bill or outside the language of the bill.  Someone other than Congress wrote it, so it must have made sense to them, therefore we had to pass it to see what someone else could re-regulate was actually in it.  Constitutionality was IRRELEVANT in the mind of Congress in its passage, and NO intent toward use of either the Commerce Clause or a Tax power can be implied as the intent of the language or passage of the bill.  The entire Soviet Constitution or the Critique of the Gotha Programme by Karl Marx could have been contained in this Healthcare Bill and Nancy Pelosi and the Democrats would have seen to its passage, oblivious or apathetic to its presence.

On Page 26 of his Opinion, Chief Justice Roberts states:

“Everyone will likely participate in the markets for food, clothing, transportation, shelter, or energy; that does not authorize Congress to direct them to purchase particular products in those or other markets today. The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions. Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States.”

So how then is it possible for us to view 4 Justices out of 9 passing the Healthcare mandate solely on the basis of Constitutionality, if and only if it is viewed as being authorized by the Commerce Clause…and only 1 Justice out of 9 passing the Healthcare Mandate if, and only if we call this Mandate’s penalty a tax, thereby granting authorization by a convoluting (a twisting) out of context the words used or misused by the Statute which renders it as unconstitutional?   Effectually, they did NOT agree in their vote as to the basis of Mandate’s Constitutional claim to standing.  That FAILED.    

Of interest in brevity is Justice Thomas’ 2 page dissent to the use of the Commerce Clause, which appears on pages 192-193 of the pdf.   Effectually there were 5 Justices ruling against the use of the Commerce Clause as activating legality for the Healthcare Mandate, which by all reason should require us to say that the Mandate was defeated under Marbury v. Madison @180. 

Justice Thomas wrote:

I dissent for the reasons stated in our joint opinion, but I write separately to say a word about the Commerce Clause. The joint dissent and THE CHIEF JUSTICE correctly apply our precedents to conclude that the Individual Mandate is beyond the power granted to Congress un-der the Commerce Clause and the Necessary and Proper Clause. Under those precedents, Congress may regulate “economic activity [that] substantially affects interstate commerce.” United States v. Lopez, 514 U. S. 549, 560 (1995). I adhere to my view that “the very notion of a

‘substantial effects’ test under the Commerce Clause is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases.” United States v. Morrison, 529 U. S. 598, 627 (2000) (THOMAS, J., concurring); see also Lopez, supra, at 584–602 (THOMAS, J., concurring); Gonzales v. Raich, 545

U. S. 1, 67–69 (2005) (THOMAS, J., dissenting). As I have explained, the Court’s continued use of that test “has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits.” Morrison, supra, at 627. The Government’s unprecedented claim in this suit that it may regulate not only economic activity but also inactivity that substantially affects interstate commerce is a case in point.

It seems to me that Chief Justice Roberts in a claim of aiding passage of the Healthcare mandate, IF that is the case…and questions remain as to if this is so, and whether the Commerce Clause is what shall de facto and de jure be followed over Robert’s own view as a tax authority …the Chief Justice Roberts has violated enforcing the bounds of the limited powers upon the Federal Government so egregiously by the enforcement of minority decision and the action of his Judicial Activism in doing an editorial rewrite of the Healthcare Mandate reserved only for the Legislature and a do-over with a submitting of bills and new castings of votes; which demands it should by all means be struck down as unConstitutional.

This decision highlights a different kind of Constitutional Crisis than what most of us saw what was coming, an Executive Branch and a Judicial Branch with chief executives, one a usurper and one an experienced Chief Justice, who have ignored the Separation of Powers of their Branches of Government from the Legislature.  We now have the Executives of the Executive and Judicial Branches now usurping the Legislative authority of Congress – one by Executive Fiat, the other by rewriting language and intent of otherwise unconstitutional Legislation before Judicial Editorial Re-writes in order to preserve the unlawful as law.   Two Branches of Government that now encroach and infringe upon that Congressional Legislative authority granted Congress exclusively by the Constitution of the United States of America.  We saw it coming from Obama, but while we were untrustingly watching Congress, Chief Justice Roberts, a Progressive Usurper of the Legislature, really blind-sided most of us.  

Questions remain as to the validity of Healthcare mandate enforcement, and by what engine of operation (as a Tax or as Commerce) if it does remain.

That's my input.  -- Brianroy

Justice Scalia's Opinion in Arizona v. United States as released June 25, 2012

The following is the opinion of Justice Scalia.  I have emphasized / emboldened case and historic references. This case deals with that Arizona State Law which was passed to deal with Immigration unenforcement by oral direction of the Obama Administration.

Arizona was forced to create passage of a State Law  to mirror Federal Law because of the lawless apathy of Obama and his Attorney General to uphold the Laws of the United States already on the books.

Radio talk show host Rush Limbaugh on June 26, 2012 rightly exclaimed:
Last night on Fox News on the Greta Van Susteren show, the governor of Arizona, Jan Brewer -- we admire Jan Brewer here -- went on Fox News and she said, "The Obama administration told Arizona to drop dead," and that is exactly what's happened. This is unbelievable.
http://www.rushlimbaugh.com/daily/2012/06/26/the_regime_refuses_to_enforce_the_border_and_tells_the_state_of_arizona_to_go_to_hell

Below, is the unabridged June 25 release of the Justice Scalia opinion, whose assent and dissent brings up some very interesting and sympathetic citations to those of us who oppose Obama as unconstitutional on the Natural Born Citizen issue and other grounds.  -- Brianroy

[Introduction last modified on 06/28/2012 for single run on sentence correction and clarity]
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http://www.supremecourt.gov/default.aspx


Cite as: 567 U. S. ____ (2012) 1
Opinion of SCALIA, J.

SUPREME COURT OF THE UNITED STATES
No. 11–182

ARIZONA, ET AL., PETITIONERS v. UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 25, 2012]

JUSTICE SCALIA, concurring in part and dissenting in part.

The United States is an indivisible “Union of sovereign States.” Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U. S. 92, 104 (1938). Today’s opinion, approving virtually all of the Ninth Circuit’s injunction against enforcement of the four challenged provisions of Arizona’s law, deprives States of what most would con- sider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there. Neither the Constitution itself nor even any law passed by Congress supports this result. I dissent.
I As a sovereign, Arizona has the inherent power to exclude persons from its territory, subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress. That power to exclude has longbeen recognized as inherent in sovereignty. Emer de Vattel’s seminal 1758 treatise on the Law of Nations stated: “The sovereign may forbid the entrance of his territory either to foreigners in general, or in particular cases,or to certain persons, or for certain particular pur- poses, according as he may think it advantageous to

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not flow from the rights of domain and sovereignty: every one is obliged to pay respect to the prohibition; andwhoever dares violate it, incurs the penalty decreed to render it effectual.” The Law of Nations, bk. II, ch. VII, §94, p. 309 (B. Kapossy & R. Whatmore eds. 2008).

See also I R. Phillimore, Commentaries upon International Law, pt. III, ch. X, p. 233 (1854) (“It is a received maximof International Law that, the Government of a State may prohibit the entrance of strangers into the country”).1

There is no doubt that “before the adoption of the constitution of the United States” each State had the author- ity to “prevent [itself] from being burdened by an influx of persons.” Mayor of New York v. Miln, 11 Pet. 102, 132– 133 (1837). And the Constitution did not strip the Statesof that authority. To the contrary, two of the Constitution’s provisions were designed to enable the States to prevent “the intrusion of obnoxious aliens through other States.” Letter from James Madison to Edmund Randolph (Aug. 27, 1782), in 1 The Writings of James Madison 226 (1900); accord, The Federalist No. 42, pp. 269–271 (C.Rossiter ed. 1961) (J. Madison). The Articles of Confeder——————

1  Many of the 17th-, 18th-, and 19th-century commentators maintained that states should exclude foreigners only for good reason.Pufendorf, for example, maintained that states are generally expected to grant “permanent settlement to strangers who have been driven from their former home,” though acknowledging that, when faced with the prospect of mass immigration, “every state may decide after its owncustom what privilege should be granted in such a situation.”

2  Of the Law of Nature and Nations, bk. III, ch. III, §10, p. 366 (C. Oldfather &
W. Oldfather eds. 1934). See generally Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 Tex. L. Rev. 1, 83–87(2002). But the authority to exclude was universally accepted asinherent in sovereignty, whatever prudential limitations there might beon its exercise.


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ation had provided that “the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States.” Articles of Confederation, Art. IV. This meant that an unwelcome alien could obtain all the rights of a citizen of one Statesimply by first becoming an inhabitant of another. To remedy this, the Constitution’s Privileges and ImmunitiesClause provided that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Art. IV, §2, cl. 1 (emphasis added). But if one State had particularly lax citizenship standards, it might still serve as a gateway for the entry of “obnoxious aliens” into other States. This problem was solved “by authorizing the general government to establish a uniformrule of naturalization throughout the United States.” The Federalist No. 42, supra, at 271; see Art. I, §8, cl. 4. In other words, the naturalization power was given to Congress not to abrogate States’ power to exclude those they did not want, but to vindicate it.

Two other provisions of the Constitution are an acknowledgment of the States’ sovereign interest in protecting their borders. Article I provides that “[n]o State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws.” Art. I, §10, cl. 2 (emphasis added). This assumed what everyoneassumed: that the States could exclude from their territorydangerous or unwholesome goods. A later portion of the same section provides that “[n]o State shall, without the Consent of Congress, . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” Art. I, §10, cl. 3 (emphasis added). This limits the States’ sovereignty (in a way not relevant here) but leavesintact their inherent power to protect their territory.
Notwithstanding “[t]he myth of an era of unrestricted

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enacted numerous laws restricting the immigra- tion of certain classes of aliens, including convicted criminals, indigents, persons with contagious diseases, and (in Southern States) freed blacks. Neuman, The Lost Century of American Immigration (1776–1875), 93 Colum. L. Rev.1833, 1835, 1841–1880 (1993). State laws not only provided for the removal of unwanted immigrants but alsoimposed penalties on unlawfully present aliens and those who aided their immigration.2 Id., at 1883.

In fact, the controversy surrounding the Alien andSedition Acts involved a debate over whether, under the Constitution, the States had exclusive authority to enactsuch immigration laws. Criticism of the Sedition Act has become a prominent feature of our First Amendment jurisprudence, see, e.g., New York Times Co. v. Sullivan, 376 U. S. 254, 273–276 (1964), but one of the Alien Acts3 also aroused controversy at the time:
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That it shall be lawful for the President of the United States at any time during the continuance of this act, to order all such aliens as he shall judgedangerous to the peace and safety of the UnitedStates, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the government thereof, to depart out ofthe territory of the United States . . . .” An Act concerning Aliens, 1 Stat. 570, 570–571.

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2 E.g., Va. Code Tit. 54, ch. 198, §39 (1849) (“If a master of a vessel orother person, knowingly, import or bring into this state, from any place out of the United States, any person convicted of crime . . . he shall beconfined in jail for three months, and be fined one hundred dollars”).
3 There were two Alien Acts, one of which dealt only with enemy aliens. An Act respecting Alien Enemies, 1 Stat. 577.


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The Kentucky and Virginia Resolutions, written in denunciation of these Acts, insisted that the power to excludeunwanted aliens rested solely in the States. Jefferson’s Kentucky Resolutions insisted “that alien friends are under the jurisdiction and protection of the laws of thestate wherein they are [and] that no power over them has been delegated to the United States, nor prohibited to the individual states, distinct from their power over citizens.” Kentucky Resolutions of 1798, reprinted in J. Powell, Languages of Power: A Sourcebook of Early American Constitutional History 131 (1991). Madison’s Virginia Resolutions likewise contended that the Alien Act purported to give the President “a power nowhere delegatedto the federal government.” Virginia Resolutions of 1798, reprinted in Powell, supra, at 134 (emphasis omitted). Notably, moreover, the Federalist proponents of the Actdefended it primarily on the ground that “[t]he removal of aliens is the usual preliminary of hostility” and could therefore be justified in exercise of the Federal Government’s war powers. Massachussets Resolutions in Reply to Virginia, reprinted in Powell, supra, at 136.

In Mayor of New York v. Miln, this Court considered a New York statute that required the commander of any ship arriving in New York from abroad to disclose “thename, place of birth, and last legal settlement, age and occupation . . . of all passengers . . . with the intention of proceeding to the said city.” 11 Pet., at 130–131. After discussing the sovereign authority to regulate the entrance of foreigners described by De Vattel, the Court said:
“The power . . . of New York to pass this law havingundeniably existed at the formation of the constitution, the simply inquiry is, whether by that instrument it was taken from the states, and granted tocongress; for if it were not, it yet remains with them.” Id., at 132.

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And the Court held that it remains. Id., at 139.

II One would conclude from the foregoing that after the adoption of the Constitution there was some doubt about the power of the Federal Government to control immigration, but no doubt about the power of the States to do so. Since the founding era (though not immediately), doubt about the Federal Government’s power has disappeared. Indeed, primary responsibility for immigration policy hasshifted from the States to the Federal Government. Congress exercised its power “[t]o establish an uniform Rule of Naturalization,” Art. I, §8, cl. 4, very early on, see An Act to establish an uniform Rule of Naturalization, 1 Stat.
103. But with the fleeting exception of the Alien Act, Congress did not enact any legislation regulating immigration for the better part of a century. In 1862, Congress passed “An Act to prohibit the ‘Coolie Trade’ by American Citizens in American Vessels,” which prohibited “procuring [Chinese nationals] . . . to be disposed of, or sold, or transferred, for any term of years or for any time whatever, as servants or apprentices, or to be held to service orlabor.” 12 Stat. 340. Then, in 1875, Congress amended that act to bar admission to Chinese, Japanese, and other Asian immigrants who had “entered into a contract or agreement for a term of service within the United States, for lewd and immoral purposes.” An act supplementary to the acts in relation to immigration, ch. 141, 18 Stat. 477. And in 1882, Congress enacted the first general immigration statute. See An act to regulate Immigration, 22 Stat. 214. Of course, it hardly bears mention that Federal immigration law is now extensive.

I accept that as a valid exercise of federal power—notbecause of the Naturalization Clause (it has no necessary connection to citizenship) but because it is an inherent attribute of sovereignty no less for the United States than

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for the States. As this Court has said, it is an “‘accepted maxim of international law, that every sovereign nationhas the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreignerswithin its dominions.’” Fong Yue Ting v. United States, 149 U. S. 698, 705 (1893) (quoting Ekiu v. United States, 142 U. S. 651, 659 (1892)). That is why there was no need to set forth control of immigration as one of the enumerated powers of Congress, although an acknowledgment ofthat power (as well as of the States’ similar power, subject to federal abridgment) was contained in Art. I, §9, whichprovided that “[t]he Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congressprior to the Year one thousand eight hundred and eight . . . .”

In light of the predominance of federal immigrationrestrictions in modern times, it is easy to lose sight of theStates’ traditional role in regulating immigration—and tooverlook their sovereign prerogative to do so. I accept as agiven that State regulation is excluded by the Constitution when (1) it has been prohibited by a valid federal law, or

(2) it conflicts with federal regulation—when, for example, it admits those whom federal regulation would exclude, orexcludes those whom federal regulation would admit.

Possibility (1) need not be considered here: there is nofederal law prohibiting the States’ sovereign power to ex- clude (assuming federal authority to enact such a law). The mere existence of federal action in the immigration area—and the so-called field preemption arising from that action, upon which the Court’s opinion so heavily relies, ante, at 9–11—cannot be regarded as such a prohibition.We are not talking here about a federal law prohibiting the States from regulating bubble-gum advertising, or even the construction of nuclear plants. We are talking about a federal law going to the core of state sovereignty:

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the power to exclude. Like elimination of the States’ other inherent sovereign power, immunity from suit, elimina- tion of the States’ sovereign power to exclude requires that “Congress . . . unequivocally expres[s] its intent to abrogate,” Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 55 (1996) (internal quotation marks and citation omitted).Implicit “field preemption” will not do.

Nor can federal power over illegal immigration bedeemed exclusive because of what the Court’s opinion solicitously calls “foreign countries[’] concern[s] about the status, safety, and security of their nationals in the UnitedStates,” ante, at 3. The Constitution gives all those on ourshores the protections of the Bill of Rights—but just as those rights are not expanded for foreign nationals because of their countries’ views (some countries, for example, have recently discovered the death penalty to be barbaric), neither are the fundamental sovereign powersof the States abridged to accommodate foreign countries’ views. Even in its international relations, the Federal Government must live with the inconvenient fact that it is a Union of independent States, who have their own sovereign powers. This is not the first time it has found that a nuisance and a bother in the conduct of foreign policy.Four years ago, for example, the Government importuned us to interfere with thoroughly constitutional state judicial procedures in the criminal trial of foreign nationals because the international community, and even an opinion of the International Court of Justice, disapproved them. See Medellín v. Texas, 552 U. S. 491 (2008). We rejected thatrequest, as we should reject the Executive’s invocation of foreign-affairs considerations here. Though it may upsetforeign powers—and even when the Federal Governmentdesperately wants to avoid upsetting foreign powers—theStates have the right to protect their borders against foreign nationals, just as they have the right to execute foreign nationals for murder.






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What this case comes down to, then, is whether the Arizona law conflicts with federal immigration law—whether it excludes those whom federal law would admit, or admits those whom federal law would exclude. It does not purport to do so. It applies only to aliens who neither possess a privilege to be present under federal law nor have been removed pursuant to the Federal Government’s inherent authority. I proceed to consider the challenged provisions in detail.

§2(B) “For any lawful stop, detention or arrest made by a law enforcement official . . . in the enforcement of anyother law or ordinance of a county, city or town or this state where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder orobstruct an investigation. Any person who is arrestedshall have the person’s immigration status determined before the person is released. . . .” S. B. 1070,§2(B), as amended, Ariz. Rev. Stat. Ann. §11–1051(B) (West 2012).

The Government has conceded that “even before Section 2 was enacted, state and local officers had state-law authority to inquire of DHS [the Department of Homeland Security] about a suspect’s unlawful status and other- wise cooperate with federal immigration officers.” Brief for United States 47 (citing App. 62, 82); see also Brief for United States 48–49. That concession, in my view, ob- viates the need for further inquiry. The Government’s conflict-pre-emption claim calls on us “to determine whether, under the circumstances of this particular case, [the State’s] law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of

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Congress.” Hines v. Davidowitz, 312 U. S. 52, 67 (1941) (emphasis added). It is impossible to make such a finding without a factual record concerning the manner in whichArizona is implementing these provisions—something theGovernment’s pre-enforcement challenge has pretermitted.“The fact that [a law] might operate unconstitutionally under some conceivable set of circumstances is insuf- ficient to render it wholly invalid, since we have notrecognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment.” United States v. Salerno, 481 U. S. 739, 745 (1987). And on its face, §2(B) merely tells state officials that they are authorized to do something that they were, by the Government’s concession, already authorized to do.

The Court therefore properly rejects the Government’schallenge, recognizing that, “[a]t this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2B will be construedin a way that creates a conflict with federal law.” Ante, at
23. Before reaching that conclusion, however, the Court goes to great length to assuage fears that “state officerswill be required to delay the release of some detainees for no reason other than to verify their immigration status.” Ante, at 22. Of course, any investigatory detention, including one under §2(B), may become an “unreasonable. . . seizur[e],” U. S. Const., Amdt. IV, if it lasts too long. See Illinois v. Caballes, 543 U. S. 405, 407 (2005). But that has nothing to do with this case, in which the Government claims that §2(B) is pre-empted by federal immigration law, not that anyone’s Fourth Amendment rights have been violated. And I know of no reason why a protracted detention that does not violate the FourthAmendment would contradict or conflict with any federal immigration law.


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§6 “A peace officer, without a warrant, may arrest a person if the officer has probable cause to believe . . .[t]he person to be arrested has committed any publicoffense that makes the person removable from theUnited States.” S. B. 1070, §6(A)(5), Ariz. Rev. Stat.Ann. §13–3883(A)(5) (West Supp. 2011).

This provision of S. B. 1070 expands the statutory list ofoffenses for which an Arizona police officer may make an arrest without a warrant. See §13–3883. If an officer has probable cause to believe that an individual is “removable”by reason of a public offense, then a warrant is not required to make an arrest. The Government’s primary contention is that §6 is pre-empted by federal immigrationlaw because it allows state officials to make arrests “without regard to federal priorities.” Brief for United States
53. The Court’s opinion focuses on limits that Congress has placed on federal officials’ authority to arrest removable aliens and the possibility that state officials willmake arrests “to achieve [Arizona’s] own immigration policy” and “without any input from the Federal Government.” Ante, at 17.

Of course on this pre-enforcement record there is no reason to assume that Arizona officials will ignore federal immigration policy (unless it be the questionable policy of not wanting to identify illegal aliens who have committed offenses that make them removable). As Arizona pointsout, federal law expressly provides that state officers may “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States,” 8 U. S. C. §1357(g)(10)(B);and “cooperation” requires neither identical efforts norprior federal approval. It is consistent with the Arizona statute, and with the “cooperat[ive]” system that Congress has created, for state officials to arrest a removable alien,

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lead on what to do next. And it is an assault on logic tosay that identifying a removable alien and holding him forfederal determination of whether he should be removed “violates the principle that the removal process is entrustedto the discretion of the Federal Government,” ante, at
18. The State’s detention does not represent commencement of the removal process unless the Federal Government makes it so.

But that is not the most important point. The most important point is that, as we have discussed, Arizona is entitled to have “its own immigration policy”—including amore rigorous enforcement policy—so long as that does not conflict with federal law. The Court says, as though the point is utterly dispositive, that “it is not a crime for a removable alien to remain present in the United States,” ante, at 15. It is not a federal crime, to be sure. But there is no reason Arizona cannot make it a state crime for a removable alien (or any illegal alien, for that matter) to remain present in Arizona.

The Court quotes 8 U. S. C. §1226(a), which provides that, “[o]n a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States.” Section 1357(a)(2) also provides that a federal immigration official “shall have power without warrant . . . to arrest any alien in the United States, if he has reason tobelieve that the alien so arrested is in the United States in violation of any [federal immigration] law or regulation and is likely to escape before a warrant can be obtained for his arrest.” But statutory limitations upon the actions of federal officers in enforcing the United States’ power toprotect its borders do not on their face apply to the actions of state officers in enforcing the State’s power to protect its borders. There is no more reason to read these provisions as implying that state officials are subject to similar limi

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tations than there is to read them as implying that only federal officials may arrest removable aliens. And in any event neither implication would constitute the sort of clearelimination of the States’ sovereign power that our cases demand.

The Court raises concerns about “unnecessary harassment of some aliens . . . whom federal officials determine should not be removed.” Ante, at 17. But we have no license to assume, without any support in the record, thatArizona officials would use their arrest authority under §6to harass anyone. And it makes no difference that federal officials might “determine [that some unlawfully present aliens] should not be removed,” ibid. They may well determine not to remove from the United States aliens who have no right to be here; but unless and until these alienshave been given the right to remain, Arizona is entitled toarrest them and at least bring them to federal officials’ attention, which is all that §6 necessarily entails. (In myview, the State can go further than this, and punish themfor their unlawful entry and presence in Arizona.)

The Government complains that state officials might not heed “federal priorities.” Indeed they might not, particularly if those priorities include willful blindness or delib- erate inattention to the presence of removable aliens in Arizona. The State’s whole complaint—the reason this law was passed and this case has arisen—is that the citizens of Arizona believe federal priorities are too lax. The State has the sovereign power to protect its borders more rigorously if it wishes, absent any valid federalprohibition. The Executive’s policy choice of lax federalenforcement does not constitute such a prohibition.

§3 “In addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alienregistration document if the person is in violation of 8

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amended, Ariz. Rev. Stat. Ann. §13–1509(A).

It is beyond question that a State may make violation of federal law a violation of state law as well. We have held that to be so even when the interest protected is a distinctively federal interest, such as protection of the dignity of the national flag, see Halter v. Nebraska, 205 U. S. 34 (1907), or protection of the Federal Government’s ability to recruit soldiers, Gilbert v. Minnesota, 254 U. S. 325 (1920). “[T]he State is not inhibited from making the nationalpurposes its own purposes to the extent of exerting its police power to prevent its own citizens from obstructingthe accomplishment of such purposes.” Id., at 331 (internal quotation marks omitted). Much more is that so when, as here, the State is protecting its own interest, the integrity of its borders. And we have said that explicitly with regard to illegal immigration: “Despite the exclusive federal control of this Nation’s borders, we cannot conclude that the States are without any power to deter the influxof persons entering the United States against federal law,and whose numbers might have a discernible impact ontraditional state concerns.” Plyler v. Doe, 457 U. S. 202, 228, n. 23 (1982).

The Court’s opinion relies upon Hines v. Davidowitz, supra. Ante, at 9–10. But that case did not, as the Court believes, establish a “field preemption” that implicitlyeliminates the States’ sovereign power to exclude thosewhom federal law excludes. It held that the States are not permitted to establish “additional or auxiliary” registration requirements for aliens. 312 U. S., at 66–67. But §3does not establish additional or auxiliary registrationrequirements. It merely makes a violation of state law the very same failure to register and failure to carry evidenceof registration that are violations of federal law. Hines does not prevent the State from relying on the federal

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registration system as “an available aid in the enforcement of a number of statutes of the state applicable to aliens whose constitutional validity has not been questioned.” Id., at 75–76 (Stone, J., dissenting). One such statute is Arizona’s law forbidding illegal aliens to collect unemployment benefits, Ariz. Rev. Stat. Ann. §23–781(B) (West 2012). To enforce that and other laws that validly turn on alien status, Arizona has, in Justice Stone’s words, an interest in knowing “the number and whereabouts of aliens within the state” and in having “a means of their identification,” 312 U. S., at 75. And it can punish the aliens’ failure to comply with the provisions of federal law that make that knowledge and identification possible.

In some areas of uniquely federal concern—e.g., fraud in a federal administrative process (Buckman Co. v. Plaintiffs’ Legal Comm., 531 U. S. 341 (2001)) or perjury in violation of a federally required oath (In re Loney, 134
U. S. 372 (1890))—this Court has held that a State has no legitimate interest in enforcing a federal scheme. But the federal alien registration system is certainly not of uniquelyfederal interest. States, private entities, and individuals rely on the federal registration system (including the E-Verify program) on a regular basis. Arizona’s legitimate interest in protecting (among other things) its unemploymentbenefits system is an entirely adequate basis for making the violation of federal registration and carry requirements a violation of state law as well.

The Court points out, however, ante, at 11, that in some respects the state law exceeds the punishments prescribedby federal law: It rules out probation and pardon, whichare available under federal law. The answer is that it makes no difference. Illegal immigrants who violate §3 violate Arizona law. It is one thing to say that the Supremacy Clause prevents Arizona law from excludingthose whom federal law admits. It is quite something elseto say that a violation of Arizona law cannot be punished

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more severely than a violation of federal law. Especiallywhere (as here) the State is defending its own sovereign interests, there is no precedent for such a limitation. The sale of illegal drugs, for example, ordinarily violates statelaw as well as federal law, and no one thinks that the state penalties cannot exceed the federal. As I have discussed, moreover, “field preemption” cannot establish aprohibition of additional state penalties in the area of immigration.

Finally, the Government also suggests that §3 poses an obstacle to the administration of federal immigration law,see Brief for United States 31–33, but “there is no conflict in terms, and no possibility of such conflict, [if] the state statute makes federal law its own,” California v. Zook, 336
U. S. 725, 735 (1949).

It holds no fear for me, as it does for the Court, that “[w]ere §3 to come into force, the State would have thepower to bring criminal charges against individuals for violating a federal law even in circumstances where fed- eral officials in charge of the comprehensive scheme determine that prosecution would frustrate federal policies.” Ante, at 11. That seems to me entirely appropriate when the State uses the federal law (as it must) as the criterion for the exercise of its own power, and the implementation of its own policies of excluding those who do not belong there. What I do fear—and what Arizona and the States that support it fear—is that “federal policies” of nonenforcement will leave the States helpless before those evileffects of illegal immigration that the Court’s opinion dutifully recites in its prologue (ante, at 6) but leavesunremedied in its disposition.

§5(C) “It is unlawful for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public


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place or perform work as an employee or independentcontractor in this state.” S. B. 1070, §5(C), as amended,Ariz. Rev. Stat. Ann. §13–2928(C).

Here, the Court rightly starts with De Canas v. Bica, 424 U. S. 351 (1976), which involved a California law providing that “‘[n]o employer shall knowingly employ analien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers.’” Id., at 352 (quoting California Labor Code Ann. §2805(a)). This Court concluded that the California law was not pre-empted, as Congress had neither occupied the field of “regulation of employment ofillegal aliens” nor expressed “the clear and manifest purpose” of displacing such state regulation. Id., at 356–357 (internal quotation marks omitted). Thus, at the time De Canas was decided, §5(C) would have been indubitably lawful.

The only relevant change is that Congress has sinceenacted its own restrictions on employers who hire illegal aliens, 8 U. S. C. §1324a, in legislation that also includes some civil (but no criminal) penalties on illegal aliens whoaccept unlawful employment. The Court concludes from this (reasonably enough) “that Congress made a deliberate choice not to impose criminal penalties on aliens who seek,or engage in, unauthorized employment,” ante, at 13. But that is not the same as a deliberate choice to prohibitthe States from imposing criminal penalties. Congress’sintent with regard to exclusion of state law need not be guessed at, but is found in the law’s express pre-emptionprovision, which excludes “any State or local law impos- ing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens,” §1324a(h)(2) (emphasis added). Common sense, reflected in the canon expressio unius est exclusio alterius, suggests

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that the specification of pre-emption for laws punishing“those who employ” implies the lack of pre-emption for other laws, including laws punishing “those who seek oraccept employment.”

The Court has no credible response to this. It quotesour jurisprudence to the effect that an “express preemption provisio[n] does not bar the ordinary working ofconflict pre-emption principles.” Ante, at 14 (quoting Geier
v. American Honda Motor Co., 529 U. S. 861, 869 (2000) (internal quotation marks omitted)). True enough— conflict preemption principles. It then goes on say thatsince “Congress decided it would be inappropriate to impose criminal penalties on aliens who seek or engage in unauthorized employment,” “[i]t follows that a state law tothe contrary is an obstacle to the regulatory system Congress chose.” Ante, at 15. For “‘[w]here a comprehensivefederal scheme intentionally leaves a portion of the regulated field without controls, then the pre-emptive inferencecan be drawn.’” Ibid. (quoting Puerto Rico Dept. of Consumer Affairs v. ISLA Petroleum Corp., 485 U.S. 495, 503 (1988)). All that is a classic description not of conflict pre-emption but of field pre-emption, which (concededly)does not occur beyond the terms of an express pre-emption provision.

The Court concludes that §5(C) “would interfere with the careful balance struck by Congress,” ante, at 15, (another field pre-emption notion, by the way) but that is easy to say and impossible to demonstrate. The Court relies primarily on the fact that “[p]roposals to make unauthorized work a criminal offense were debated and discussed during the long process of drafting [the Immigration Reform and Control Act of 1986 (IRCA)],” “[b]ut Congress rejected them.” Ante, at 14. There is no more reason to believe that this rejection was expressive of a desire that there be no sanctions on employees, than expressive of a desire that such sanctions be left to the States. To tell the

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truth, it was most likely expressive of what inaction ordinarily expresses: nothing at all. It is a “naïve assumptionthat the failure of a bill to make it out of committee, or to be adopted when reported to the floor, is the sameas a congressional rejection of what the bill contained.” Crosby v. National Foreign Trade Council, 530 U. S. 363, 389 (2000) (SCALIA, J., concurring in judgment) (internalquotation marks and alterations omitted).

* * * The brief for the Government in this case asserted that “the Executive Branch’s ability to exercise discretion and set priorities is particularly important because of the needto allocate scarce enforcement resources wisely.” Brief for United States 21. Of course there is no reason why theFederal Executive’s need to allocate its scarce enforcement resources should disable Arizona from devoting its resources to illegal immigration in Arizona that in its view the Federal Executive has given short shrift. DespiteCongress’s prescription that “the immigration laws of theUnited States should be enforced vigorously and uniformly,” IRCA §115, 100 Stat. 3384, Arizona asserts without contradiction and with supporting citations: “[I]n the last decade federal enforcement efforts havefocused primarily on areas in California and Texas, leaving Arizona’s border to suffer from comparativeneglect. The result has been the funneling of an increasing tide of illegal border crossings into Arizona. Indeed, over the past decade, over a third of the Nation’s illegal border crossings occurred in Arizona.” Brief for Petitioners 2–3 (footnote omitted).

Must Arizona’s ability to protect its borders yield to thereality that Congress has provided inadequate funding for federal enforcement—or, even worse, to the Executive’s unwise targeting of that funding?

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But leave that aside. It has become clear that federal enforcement priorities—in the sense of priorities based on the need to allocate “scarce enforcement resources”—is not the problem here. After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immi- gration enforcement some 1.4 million illegal immigrants under the age of 30.4 If an individual unlawfully presentin the United States
“• came to the United States under the age of sixteen;
“• has continuously resided in the United States for
at least five years . . . ,
“• is currently in school, has graduated from high
school, has obtained a general education development
certificate, or is an honorably discharged
veteran . . . ,
“• has not been convicted of a [serious crime]; and
“• is not above the age of thirty,”5 then U. S. immigration officials have been directed to “defe[r] action” against such individual “for a period of two years, subject to renewal.”6 The husbanding of scarceenforcement resources can hardly be the justification for this, since the considerable administrative cost of conducting as many as 1.4 million background checks, and rulingon the biennial requests for dispensation that the nonen——————


4 Preston & Cushman, Obama to Permit Young Migrants to Remain in U. S., N. Y. Times, June 16, 2012, p. A1. 
5 Memorandum from Janet Napolitano, Secretary of Homeland Security, to David V. Aguilar, Acting Commissioner, U. S. Customs and Border Protection; Alejandro Mayorkas, Director, U. S. Citizenship and Immigration Services; and John Morton, Director, U. S. Immigra- tion and Customs Enforcement, p. 1 (June 15, 2012), online at http://www.dhs.gov (all Internet materials as visited June 22, 2012, and available in Clerk of Court’s case file).
6 Id., at 2.


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forcement program envisions, will necessarily be deducted from immigration enforcement. The President said at a news conference that the new program is “the right thingto do” in light of Congress’s failure to pass the Administration’s proposed revision of the Immigration Act.7 Perhapsit is, though Arizona may not think so. But 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.

The Court opinion’s looming specter of inutterable horror—“[i]f §3 of the Arizona statute were valid, every Statecould give itself independent authority to prosecute fed- eral registration violations,” ante, at 10—seems to me not so horrible and even less looming. But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Government that does not want to enforce the immigration lawsas written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at themercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?

A good way of answering that question is to ask: Would the States conceivably have entered into the Union if theConstitution itself contained the Court’s holding? Today’sjudgment surely fails that test. At the Constitutional Convention of 1787, the delegates contended with “the jealousy of the states with regard to their sovereignty.” 1Records of the Federal Convention 19 (M. Farrand ed.1911) (statement of Edmund Randolph). Through ratification of the fundamental charter that the Convention produced, the States ceded much of their sovereignty to the Federal Government. But much of it remained jealously

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7  Remarks by the President on Immigration (June 15, 2012), online at http://www.whitehouse.gov.

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guarded—as reflected in the innumerable proposals thatnever left Independence Hall. Now, imagine a provision—perhaps inserted right after Art. I, §8, cl. 4, the Naturalization Clause—which included among the enumerated powers of Congress “To establish Limitations upon Immigration that will be exclusive and that will be enforced only to the extent the President deems appropriate.” The delegates to the Grand Convention would have rushed to the exits.

As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the veryhuman 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. Thousands of Arizona’s estimated 400,000 illegal immigrants—including not just children but men and women under 30—are now assured immunity from enforcement, and will be able to compete openly with Arizona citizens for employment.

Arizona has moved to protect its sovereignty—not incontradiction of federal law, but in complete compliancewith it. The laws under challenge here do not extend orrevise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territoryin this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State. I dissent.





Cite as: 567 U. S. ____ (2012) 1
Opinion of SCALIA, J.