I hope you RECALL that this is the POLITICS thread

by **JUburton** » Mon Jun 25, 2012 11:22:07

During Scalia's AZ vs. US dissent he said the following:

It has become clear that federal enforcement priorities—in the sense of priorities based on the need to allocate “scarce enforcement resources”—is [sic] 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 immigration enforcement some 1.4 million illegal immigrants under the age of 30.

Note that this has basically nothing to do with the case. Guy gives no fucks.

by **RichmondPhilsFan** » Mon Jun 25, 2012 11:31:19

JUburton wrote:During Scalia's AZ vs. US dissent he said the following:

It has become clear that federal enforcement priorities—in the sense of priorities based on the need to allocate “scarce enforcement resources”—is [sic] 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 immigration enforcement some 1.4 million illegal immigrants under the age of 30.
Note that this has basically nothing to do with the case. Guy gives no #$!&@.

Non-sequiturs aside, I don't even understand the logic. Isn't the exemption program further evidence that the government is seeking to allocate enforcement resources to focus on non-citizens who aren't otherwise law-abiding people?

by **CFP** » Mon Jun 25, 2012 12:34:17

Scalia can't make up his mind on anything, really. That's fine, but I lost respect for him after the Raich decision

by **RichmondPhilsFan** » Mon Jun 25, 2012 14:29:19

SB 1070 and the Scalia Clown Show

June 25, 2012 | Scott Lemieux

As mentioned below, the Supreme Court struck down three of the four challenged provisions of the Arizona immigration law and left open an as-applied challenge on the other one.

As I also suggested below and explain further at the link, the Scalia dissent is a perverse masterpiece. It was particularly beautiful timing that it was issued just a week after his book attacking other judges for their insufficient legal formalism. His entire argument proceeds from a premise — that Arizona has the same inherent right to exclude people and control its borders as a nation-state — which is 1)ridiculous on its face and 2)has no support in any relevant American legal text. And lest you miss the point, the dissent is extensively salted by political polemics of no obvious legal relevance. In addition to what I quoted below, I especially treasure what he seems to think is a rhetorical question: “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?” I had no idea that states could preempt federal law as long as the federal government is exercising its powers in ways that Antonin Scalia doesn’t like.

In conclusion, Antonin Scalia believes in the rule of law and you don’t. Shame on you!

…I forgot to mention this, but also compare Scalia’s arguments about preemption in this case with his opinion stretching a federal statute like taffy to preempt state-permitted class-action lawsuits in Concepcion. Hacktacular! More on Scalia and SB 1070 here.

http://www.lawyersgunsmoneyblog.com/2012/06/sb-1070-and-the-scalia-clown-show

by **TenuredVulture** » Mon Jun 25, 2012 14:50:48

So, Scalia is finally admitting that Court decisions have nothing to with judicial philosophy--originalism and strict constructionism and constitutionalism or anything like that but have everything to do with promoting the Republican political agenda.

I sure hope that progressives never forget that the judicial branch is not their friend, judicial review is not a bedrock of liberties, or any other such nonsense. The Warren Court was a brief anomaly in the history of the "least" dangerous branch.

by **JUburton** » Mon Jun 25, 2012 15:15:34

One of the more frightening results of a Romney election could be potential SC justice appointments. Ginsburg, Breyer, and sort of Kennedy would really have to not die.

by **jerseyhoya** » Mon Jun 25, 2012 15:28:29

The next confirmation battle where a liberal justice is being replaced by a Republican president or conservative justice is being replaced by a Democratic president is going to be Armageddon like

by **Monkeyboy** » Mon Jun 25, 2012 17:03:12

Scalia is a hack and the very worst this country has to offer. He doesn't care one bit about anything but his agenda. He's not even pretending anymore which just tells us that he knows the game is over. I hope the fucker dies a horrible death and I mean that. I can't recall ever saying that about anyone before, not even Dick Cheney.

by **Monkeyboy** » Mon Jun 25, 2012 17:03:58

jerseyhoya wrote:The next confirmation battle where a liberal justice is being replaced by a Republican president or conservative justice is being replaced by a Democratic president is going to be Armageddon like

only because the current crop of conservative judges have turned the SC into a joke. Scalia can't even agree with his own decisions. They change to fit his agenda.

by **RichmondPhilsFan** » Mon Jun 25, 2012 17:19:08

Monkeyboy wrote:
jerseyhoya wrote:The next confirmation battle where a liberal justice is being replaced by a Republican president or conservative justice is being replaced by a Democratic president is going to be Armageddon like

only because the current crop of conservative judges have turned the SC into a joke. Scalia can't even agree with his own decisions. They change to fit his agenda.

You mean the man who insisted that California's medicinal marijuana program violated the commerce clause (and in doing so, praised Wickard less than a decade after railing against the expansionist interpretation of the commerce clause in Morrison and Lopez?

He's always been a joke. He has never tried to stay philosophically consistent... it's always been about political leanings for him. He's a brilliant guy, but he's so transparent it's ridiculous.

by **The Nightman Cometh** » Mon Jun 25, 2012 17:22:42

(waits for jh to come guns blazing in defense of Scalia)

by **jerseyhoya** » Mon Jun 25, 2012 18:24:41

Monkeyboy wrote:
jerseyhoya wrote:The next confirmation battle where a liberal justice is being replaced by a Republican president or conservative justice is being replaced by a Democratic president is going to be Armageddon like

only because the current crop of conservative judges have turned the SC into a joke. Scalia can't even agree with his own decisions. They change to fit his agenda.

We didn't start the fire.

by **Monkeyboy** » Mon Jun 25, 2012 18:28:10

Thanks for the talking point. "Activist judges" was always a cover for the plan to do it yourself. Accuse the other side of what you are trying to do yourself is pretty much Rule #1 of GOP politics.

But congratulations, it works.

by **slugsrbad** » Mon Jun 25, 2012 20:42:54

I don't have too much of a problem with most of Scalia's opinions.. I think he's wrong 9 out of 10 times, but I don't see him as the anti-christ.

by **Rococo4** » Mon Jun 25, 2012 21:17:29

The "tea leaves" seem to suggest Roberts majority opinion with Ginsberg writing the dissent.....which is obv bad news for the mandate. I've thought all along that Roberts is going to really try to at least write the mandate part of the opinion to get 6 votes if any way possible.

Who really knows though, just wish it would happen already.

by **joe table** » Mon Jun 25, 2012 22:27:46

slugsrbad wrote:I don't have too much of a problem with most of Scalia's opinions.. I think he's wrong 9 out of 10 times, but I don't see him as the anti-christ.

His jurisprudence is tailor-made for dissenting opinions IMO. Originalism on the whole is arguably best suited for this, it can be applied to the weaker points in any opinion that expands or changes pre-existing categories of constitutional law (as a lot of the liberal justices advocate, shifting from strict categoricalism to balancing tests)

When Scalia had to write for the majority in Heller you saw how his jurisprudence gets severely strained when he has to take to other side of the coin. The inferences and leaps he had to chain together to make to construct his argument were the types of things he has been so fond of attacking Breyer/Stevens for over the years

by **joe table** » Mon Jun 25, 2012 23:11:16

FYI, with all the Scalia talk, I think this guy is 100% correct about what Scalia's opinion is going to look like on the ACA. It won't be the court's opinion, either a concurrence or dissent. If you get bogged down in the doctrine, skip to the 2nd to last paragraph, which I think is spot on. Scalia basically laid the groundwork for this in Raich. Obviously the writer here agrees with Scalia, as he is one of the most vocal legal academics against the ACA

http://www.volokh.com/2010/12/15/the-do ... er-clause/

by **Monkeyboy** » Mon Jun 25, 2012 23:27:46

there's no such thing as an antichrist, just bad people.

by **drsmooth** » Mon Jun 25, 2012 23:40:00

joe table wrote:FYI, with all the Scalia talk, I think this guy is 100% correct about what Scalia's opinion is going to look like on the ACA. It won't be the court's opinion, either a concurrence or dissent. If you get bogged down in the doctrine, skip to the 2nd to last paragraph, which I think is spot on. Scalia basically laid the groundwork for this in Raich. Obviously the writer here agrees with Scalia, as he is one of the most vocal legal academics against the ACA

http://www.volokh.com/2010/12/15/the-do ... er-clause/

With due respect to the formidable intellects of our legal fraternity, I've almost always felt "legal reasoning" was every bit the oxymoron "military intelligence" is justly famed to be.

The 'activity/inactivity' hangup the author of the linked post suspends his argument from (ok, it's actually Judge Hudson's argument, but the author is basically making book on Hudson's position) is mostly an embarrassing display of his wobbly grasp of economics. What might such a jurist make of physics? The concept of gravity would completely elude him. By his rationale, "commerce" is essentially bounded by activities pertaining to auditable merchant-customer transactions. For all practical purposes we left that notion behind sometime before Teddy Roosevelt left the White House.

by **joe table** » Mon Jun 25, 2012 23:55:45

Well it's all just a means to an end as we've all been pointing out, obviously guys like Barnett (who is undoubtedly very smart) have the goal of providing a "workable" limit of the scope of federal commerce power, and are looking to piece together doctrine to do so. They have very little favorable doctrine to work with, which is why overturning the individual mandate would not be good constitutional law

The Scalia "look what I found" idea from Raich--merging the unworkable Wickard test (which allows you to add up anything to get substantial effect on isc) within the framework of Necessary and Proper clause jurisprudence--gives them probably their best doctrinal hook to reign in CC jurisprudence. Scalia already latched on to dicta from Lopez about "activity" in his Raich concurrence, as the writer pointed out, so he basically laid his own groundwork to embrace an activity/inactivity "line." But as has been said, it's really not a strong argument given the precedents. It is somewhat creative though, especially for a guy like Scalia

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