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Supporting the President’s Authority to Exercise Discretion (Quotes from the Supreme Court)

Cite as "AILA InfoNet Doc. No. 12062848 (posted Jun. 28, 2012)"

Haven't had time to read the Supreme Court decision on Arizona v. United States in its entirety?
Don't worry we've compiled some of the most compelling quotes from the majority opinion and Justice Scalia's dissent.

Quotes on the President's Authority to Exercise Discretion in the Matter of Immigration

Supporting, from the Majority Opinion written by Justice Kennedy.

  • A principal feature of the removal system is the broad discretion exercised by immigration officials. (Page 4)
  • Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal. (Page 4)
  • Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. (Page 4)
  • Were §3 to come into force, the State would have the power to bring criminal charges against individuals for violating a federal law even in circumstances where federal officials in charge of the comprehensive scheme determine that prosecution would frustrate federal policies. (Page 11)
  • Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad. (Page 3)
  • The federal statutory structure instructs when it is appropriate to arrest an alien during the removal process. For example, the Attorney General can exercise discretion to issue a warrant for an alien's arrest and detention "pending a decision on whether the alien is to be removed from the United States." 8 U. S. C. §1226(a); see Memorandum from John Morton, Director, ICE, to All Field Office Directors et al., Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens (June 17, 2011) (hereinafter 2011 ICE Memorandum) (describing factors informing this and related decisions). (Page 16)
  • This would allow the State to achieve its own immigration policy. The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed. (Page 17)
  • It is true that §2(B) does not allow state officers to consider federal enforcement priorities in deciding whether to contact ICE about someone they have detained. See Brief for United States 47-50. In other words, the officers must make an inquiry even in cases where it seems unlikely that the Attorney General would have the alien removed. This might be the case, for example, when an alien is an elderly veteran with significant and longstanding ties to the community. (Page 21)
  • Immigration policy shapes the destiny of the Nation. On May 24, 2012, at one of this Nation's most distinguished museums of history, a dozen immigrants stood before the tattered flag that inspired Francis Scott Key to write the National Anthem. There they took the oath to become American citizens. (Page 24)
  • The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation's meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law. (Page 25)

Opposing, from Justice Scalia's Dissent:

  • What I do fear-and what Arizona and the States that support it fear-is that "federal policies" of non-enforcement will leave the States helpless before those evil effects of illegal immigration that the Court's opinion dutifully recites in its prologue (ante, at 6) but leaves unremedied in its disposition. (Page 16)
  • Of course there is no reason why the Federal 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. (Page 19)
  • 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? (Page 19)
  • The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conducting as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the non-enforcement program envisions, will necessarily be deducted from immigration enforcement. The President said at a news conference that the new program is "the right thing to do" in light of Congress's failure to pass the Administration's proposed revision of the Immigration Act.7. Perhaps it 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. (Page 20-21)
  • Are the sovereign States at the mercy of the Federal Executive's refusal to enforce the Nation's immigration laws? (Page 21)
  • 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. (Page 22)
  • 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. (Page 22)
  • If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State. (Page 22)