Illegal border crossing 19 September 2010 (CCL)
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.
I wrote about the case last fall here, and the Court’s decision is here.
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.
SCOTUS hateus
http://freenorthcarolina.blogspot.com/2012/06/scotus-hateus.html
by Aaron D. Wolf
There are some real stunners in today’s convoluted ruling from the Supremes regarding Arizona v. United States. Here are some of my favorites:
“As a general rule, it is not a crime for a removable alien to remain in the United States.”
“Federal governance is extensive and complex.”
“Removal is a civil matter, . . .
” . . . and one of its principal features is the broad discretion exercised by immigration officials, who must decide whether to pursue removal at all.”
“States are precluded from regulating conduct in a field that Congress has determined must be regulated by its exclusive governance.”
“Because Congress has occupied the field, even complementary state regulation is impermissible.”* **
*I made that one up.
**Not really: It’s real.
If only all immigrants were white….how little you all would have to complain about.
I am truly stunned by the Dream Act comment to the post, as it tells me where your heart is.
Whether you describe it as the dawning of a post-racial age or just the end of white America, we’re approaching a profound demographic tipping point. According to an August 2008 report by the U.S. Census Bureau, those groups currently categorized as racial minorities—blacks and Hispanics, East Asians and South Asians—will account for a majority of the U.S. population by the year 2042. Among Americans under the age of 18, this shift is projected to take place in 2023, which means that every child born in the United States from here on out will belong to the first post-white generation.
This is a very good think for the nation, as diversity is what has made this nation so wonderful and has allowed for a healthy economic engine over the many decades.
The shortsightedness of your posts about race and immigation speaks volumes about the nature of who you are as a person.
I believe it is the different ethnicities that have made this nation wonderful, not the diversties of cultures. Diversities can divide, while Ethnicities are what contribute to the whole. Just my opinion of course. I guess I wonder when the word illegal became “within the law”? Do we need to change our dictionaries?
Hi, Gregory,
Sorry I’m having trouble responding in a timely fashion. I’m three thousand miles from home, visiting family and on their schedule.
You misunderstood me. I’m not complaining about immigrants, and I’m not complaining about immigrants of color. I’m descended from immigrants whom came to this country from half the countries in Europe, and I think the successive waves of immigration we’ve had through the last three centuries are one of our greatest strengths and glories as a country.
I do, however, have a problem with people who are in this country illegally–because I’m really big on the rule of law. Without it we descend into the violence and chaos we see around the world.
Being big on the rule of law means that I have a big problem with:
a) people who are in this country illegally;
b) the President enacting the Dream Act (which he’s previously said he didn’t have authority to enact) when Congress declined to.
Separation of powers is a fundamental aspect of protecting us from tyranny. When the President steps in and does Congress’s job, we’re well down the road to tyranny. Please review the end of my post above, and you’ll see it was the President’s usurpation of power I was objecting to, not immigration or the Dream Act.
This blogger sticks to the documented facts, while you try to ‘one up’ her with ‘facts’ that come off the top of your head.
This is a blog for generating discussion; not bashing the author, which you seem to delight in.
These facts that I presented are from the U.S. Census Bureau–not just fanciful numbers I created. No seems to want discussion on the topics. There seems to be a desire to tote the party line that is offered. It seems I am the only one that differs–so yes–that makes me stand out. But if you want a discussion how is that the best you could offer was not add to the U.S. Census Bureau stats and take off from there. All you offered was that I somehow maligned the author–which I do not think I did.