How can this be a partisan issue?

The Supreme Court ruled today on the propriety of Arizona's law that requires businesses that get authority to operate in the state to use the federal e-verify system to make sure that prospective employees have valid social security numbers as a condition to hiring those employees. The majority ruled that while Congress did not make the e-verify program mandatory for use by all businesses in the country, it also did not pre-empt the individual states from requiring use of e-verify in connection with a matter like granting licenses to do business which are in the purview of the state governments.

This explanation from the Supreme Court seems straightforward and correct to me. What surprises me, however, is that the decision was not unanimous, but rather it was 5 to 3 (Justice Kagan did not participate). The three in the minority were the liberal wing of the Court. I have not yet been able to read the full decision, but the description of the dissent in news articles (which admittedly are often wrong) indicates that the basis for the dissent was strange indeed. Justice Sotomayor was of the view that since Congress had the chance to make e-verify mandatory across the nation and did not do so means that an individual state cannot do so. That opinion would overrule centuries of cases that deal with the supremacy clause of the Constitution. Simply put, the Supremacy Clause has been held to mean that if Congress takes action in an area with the clear intent to exclude any action by states in the area, then the federal law pre-empts any state attempt to take action of any sort in that area. Here, Justice Sotomayor wants to change the standard to be that if Congress considers an area, states are precluded from acting in that area, whether or not Congress intended to pre-empt state action. In other words, Sonia wants to rewrite two hundred years of jurisprudence.

Justice Breyer dissented on the grounds that the system is too prone to errors to allow states to use it without adding protection aginst errors. Somehow, there must be more to his opinion. I do not believe that even Breyer would just impose legislative requirements on states when there is no basis to do so.

What I find most annoying, however, about this decision is that it seems that the three liberal judges are just acting against Arizona for political purposes. No judge who followed the constitution could come to the opinions of the dissent in my opinion. There is just no basis for these dissents. It is sad that the Court has been reduced to a mini-legislature.