In a 5-3 decision this morning, the Supreme Court struck down much of Arizona’s immigration law in a decision that puts the ball squarely back where it belongs: in the Congress’s lap.
The Court reviewed four sections of the law. Conservative Chief Justice John Roberts and swing voter Justice Anthony Kennedy joined liberal Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor in striking down three of them. (Justice Elena Kagan recused herself because, as Solicitor General, she had helped craft the Administration’s attack on the law.) But they left one key provision in place . . . at least for the time being.
The Arizona statute:
X made it illegal to be in the country, well, illegally–The High Court held that this provision is preempted by federal law–which of course already makes it illegal to be in the country without proper authorization–and so can’t be enforced. They said that Congress hasn’t left states any wiggle room here, even to implement the federal prohibition when the feds refuse to.
X made it illegal for illegal aliens to apply for a job or work in Arizona–The Court held that since Congress hasn’t chosen to make working in the country without authorization a federal crime, states can’t step in and do that instead.
X authorized state police to arrest without a warrant someone otherwise legally in this country, if they had probable cause to believe the person had committed a deportable offense–but the Court held that only the feds have the authority to decide whether to arrest someone for being here illegally.
√ requires state police to check the immigration status of people arrested for other reasons, and lets them stop and detain anyone suspected of being an illegal alien–The Court held that the lower courts were wrong to keep this section from going into effect while its legality is being challenged in court. They remanded the case (sent it back) to state courts to let them interpret exactly how this part of the statute would be enforced, and then to decide whether or not this provision is in conflict with federal law. Whatever the state court decides, their ruling is sure to be appealed, so this provision is going to be around–at least in the courts–for a good long while yet.
Interestingly, in view of the remand, the Court made a point of mentioning that the law:
- prohibits stops based on race or national origin, and
- provides that stops must be conducted consistent with federal immigration and civil rights law.
The very fact that the Court mentioned this might encourage a lower court to find the provision legal.
It’s also important to note that the Court didn’t hold any aspect of the law inherently unconstitutional–just preempted by federal law. And indeed the majority seemed sympathetic to Arizona’s plight. Justice Anthony Kennedy, writing for the majority, said that:
The pervasiveness of federal regulation does not diminish the importance of immigration policy to the States. Arizona bears many of the consequences of unlawful immigration. . . . 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.
Both Kennedy and Chief Justice Roberts seemed very sympathetic to Arizona’s plight during oral arguments on the case in April. The Chief Justice said, at one point:
It seems to me that the federal government just doesn’t want to know who is here illegally or not.
But the case today came down to the Constitution’s division of powers between state and federal governments. Kennedy noted that immigration law is left to the feds because it:
involve(s) policy choices that bear on this Nation’s international relations.
So Congress is now free to go back and change federal law: to statutorily allow states to implement federal law when the feds don’t, for example, or to make working in the country when you’re here without authorization a federal crime. Sadly, though, their lackluster response to the President’s recent usurpation of their power in passing the DREAM Act by fiat doesn’t give much hope that they will.