Dear Walter and Dahlia,

I have read Arizona v. United States and was particularly struck by Justice Scalia’s opinion dissenting from the part of the decision that invalidated several provisions of the Arizona law.



Justice Scalia is famously outspoken. Is that a good thing for a Supreme Court justice to be? Good or bad, it seems correlated with an increasing tendency of justices to engage in celebrity-type extrajudicial activities, such as presiding at mock trials of fictional and historical figures (was Hamlet temporarily insane when he killed Polonius? Should George Custer be posthumously court-martialed for blowing the Battle of the Little Big Horn?). My own view, expressed much better by professor Lawrence Douglas of Amherst, is that such activities give a mistaken impression of what trials are good for. But I would give Justice Sotomayor a pass for appearing on Sesame Street to adjudicate a dispute between two stuffed animals.



But that is to one side of Justice Scalia’s opinion.



He is very concerned with the fact that the Obama administration recently announced a program suspending deportation efforts directed at more than1 million illegal immigrants under the age of 30. He quotes President Obama as having said that the program was “the right thing to do.” Justice Scalia says that it “boggles the mind” to think that Arizona could be contradicting federal law by enforcing applications of federal immigration law “that the President declines to enforce.” He says that the federal government “does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude.” The federal government is “refus[ing] to enforce the Nation’s immigration laws.”



These are fighting words. The nation is in the midst of a hard-fought presidential election campaign; the outcome is in doubt. Illegal immigration is a campaign issue. It wouldn’t surprise me if Justice Scalia’s opinion were quoted in campaign ads. The program that appalls Justice Scalia was announced almost two months after the oral argument in the Arizona case. It seems rather a belated development to figure in an opinion in the case.



Illegal immigration is a polarizing political and social issue. Many people hate illegal immigrants. Others regard them as an indispensable part of the American labor force. There are 10 million to 11 million illegal immigrants (for rather obvious reasons no one knows the exact number), and illegal immigrants are thought to amount to about 5 percent of the total labor force. Because they tend to do jobs that few Americans want, and because their wages are below average, many (though by no means all) economists believe that the illegal immigrants actually increase the wages of Americans (including legal immigrants). The reason is that the existence of a large body of low-wage workers increases the demand for goods and services both by reducing the cost of production and by their own purchases as consumers, and increased demand for goods and services translates into increased demand for labor and hence higher wages. This is not a certainty but seems a good guess of the effect of illegal immigrants. Illegal immigrants do receive some social services, but fewer than citizens do. It is unclear whether they commit more crimes on average than citizens; they may commit fewer. Of course, some illegal immigrants are criminals, and the Obama administration has decided to focus the very limited resources of the federal immigration enforcement authorities on catching and deporting the criminals. Focusing on them and leaving the law-abiding (law-abiding except for the immigration law itself!) illegal immigrants seems a defensible policy. And certainly state and local law enforcement can assist the feds in apprehending illegal immigrants who commit crimes (being in this country without legal authorization is unlawful, but, with some exceptions, it is not criminal); nothing in the Arizona decision prevents that.



In his peroration, Justice Scalia says that “Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrant who invade their property, strain their social services, and even place their lives in jeopardy.” Arizona bears the brunt? Arizona is only one of the states that border Mexico, and if it succeeds in excluding illegal immigrants, these other states will bear the brunt, so it is unclear what the net gain to society would have been from Arizona’s efforts, now partially invalidated by the Supreme Court. But the suggestion that illegal immigrants in Arizona are invading Americans’ property, straining their social services, and even placing their lives in jeopardy is sufficiently inflammatory to call for a citation to some reputable source of such hyperbole. Justice Scalia cites nothing to support it.



As of last year there were estimated to be 360,000 illegal immigrants in Arizona, which is less than 6 percent of the Arizona population—below the estimated average illegal immigrant population of the United States. (So much for Arizona’s bearing the brunt of illegal immigration.) Maybe Arizona’s illegal immigrants are more violent, less respectful of property, worse spongers off social services, and otherwise more obnoxious than the illegal immigrants in other states, but one would like to see some evidence of that.

Sincerely,

Richard Posner