The US Supreme Court has upheld the most controversial provisions of Arizona’s immigration law. Or, as the NYT headline puts it, “High Court Rejects Part of Arizona Immigration Law.” WaPo, running the same two paragraph AP story, titles it “Supreme Court strikes down key provisions, but not all, of Arizona immigration law.”
The Supreme Court has struck down key provisions of Arizona’s crackdown on immigrants.
But the court said Monday that one part of the law requiring police to check the status of someone they suspect is not in the United States legally could go forward. Even there, though, the justices said the provision could be subject to additional legal challenges.
The decision has just been handed down and neither the syllabus, the opinions, or extensive analysis is yet available. But the key takeaway seems to be that SCOTUS has both struck down parts of Arizona’s law while upholding the part that we’ve been debating for the past couple of years.
I gather from Lyle Denniston that Scalia, Thomas, and Alito are dissenting in part as they would have upheld the entire bill. Kagan recused herself because she was Solicitor General when the case was brought.
UPDATE: The opinions are out and Kevin Russell has an initial analysis at SCOTUSblog.
Here is a rundown on the Court’s ruling with respect to each relevant challenge:
1. Police Checks. Section 2(B) of the law requires the police to check the immigration status of persons whom they detain before releasing them. It also allows the police to stop and detain anyone suspected of being an undocumented immigrant. The Court held that the lower courts were wrong to prevent this provision from going into effect while its lawfulness is being litigated. It was not sufficiently clear that the provision would be held preempted, the Court held. The Court took pains to point out that the law, on its face, prohibits stops based on race or national origin and provides that the stops must be conducted consistent with federal immigration and civil rights laws. However, it held open that the provision could eventually be invalidated after trial.
2. State Law Crime of Being In The Country Illegally. Although federal law already makes it illegal for someone to be in the country without proper authorization, Section 3 of the Arizona statute also makes it a state crime, subject to additional fines and possible imprisonment. The Court held that this provision was preempted and cannot be enforced. The Court held that Congress has left no room for states to regulate in this field, even to implement the federal prohibition.
3. Ban on Working In The State. Section 5(C) of the statute also makes it a state crime for undocumented immigrants from applying for a job or working in the state. It is also held preempted as imposing an obstacle to the federal regulatory system. Because Congress obviously chose not make working in the country without proper authorization a federal crime, states cannot enact additional criminal penalties Congress decided not to impose.
4. Warrantless Arrest Of Individuals Believed To Have Committed A Deportable Crime. Section 6 of the statute authorizes state law enforcement officials to arrest without a warrant any individual otherwise lawfully in the country, if law enforcement officials have probable cause to believe the individual has committed a deportable offense. The Court held that this provision is preempted. Whether and when to arrest someone for being unlawfully in the country is a question solely for the federal government.
So, again, the provision of the law that got the most attention has been upheld, at least tentatively. The parts of the law that most were unaware of fell on Supremacy Clause grounds.
I’ll be interested in reading Scalia’s dissent to see if I find it persuasive but the strikedowns here strike me as perfectly consistent with the role of states in our system. Immigration policy is rather obviously a foreign policy issue delegated to the Congress.
On the face of it, I’m also inclined to agree that the 2(B) provision is constitutional. As I wrote at the time it came out, I find it outrageous from a public policy standpoint and don’t see how it can be enforced without violating the Equal Protection Clause of the 14th Amendment. But the bill’s framers shrewdly put in language forbidding discriminatory action by police.
I gather that the caveat here is pretty huge: The Court reserves the right to invalidate 2(B) if, once an actual case in controversy arises, it becomes clear that the enforcement is, as a practical matter, discriminatory against people who “look foreign.”
UPDATE 2: YahooNews has titled their report “Supreme Court upholds key part of Arizona immigration law, strikes down rest,” which strikes me as more relevant to the public debate surrounding the law. But I’ve updated my headline for this post from “Supreme Court Upholds Arizona Immigration Law” to the more accurate “Supreme Court Upholds Arizona Immigration Checks (For Now).”
