Supreme Court partially strikes down Arizona immigration law

The US Supreme Court on June 25 ruled 5-3 that three provisions of Arizona’s controversial immigration law, SB 1070, are preempted by federal law but upheld the most controversial provision. In Arizona v. United States, four specific provisions of the law were at issue: Section 2(B), which requires police officers to check the immigration status of anyone whom they arrest and allows police to stop and arrest anyone whom they believe to be an illegal immigrant; Section 3, which makes it a crime for someone even to be in the state without valid immigration papers; Section 5(C), which makes it a crime to apply for or hold a job in Arizona without proper papers; and Section 6, which gives a police officer the power to arrest an individual, without a warrant, whom the officer believes has committed a crime that could cause him or her to be deported, no matter where the crime may have occurred. In his opinion, Justice Anthony Kennedy found that sections 3, 5(C) and 6 intruded in areas reserved for the federal government:

The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse. 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.

In upholding section 2(B), the court found that 2(B) can be construed as a constitutional exercise of state authority, and that “it would be inappropriate to assume 2(B) will be construed in a way that creates a conflict with federal law.” Kennedy was joined in his opinion by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor.

Justices Antonin Scalia, Clarence Thomas, and Samuel Alito each entered dissenting opinions. In his dissent, Scalia said he would uphold the Arizona law in its entirety. He maintained that the Constitution has given states the authority to regulate immigration just as they have the authority to prosecute individuals for other crimes. He concluded that the Arizona laws do not interfere with federal regulations:

What this case comes down to, then, is whether the Arizona law conflicts with federal immigration law—whether it excludes those whom federal law would admit, or admits those whom federal law would exclude. It does not purport to do so. It applies only to aliens who neither possess a privilege to be present under federal law nor have been removed pursuant to the Federal Government’s inherent authority.

Justice Elena Kagan took no part in the decision (she was recused because she had worked on the case while serving in the Justice Department prior to her nomination to the court). The US Court of Appeals for the Ninth Circuit upheld an injunction blocking the four controversial sections last April before the law took effect, and Arizona asked the high court to weigh in. The court agreed to hear the case in December.

From Jurist, June 25. Used with permission.

See our last post on the struggle in Arizona.

  1. Other challenges to SB 1070
    Important to note that this Justice Department challenge to SB 1070 was argued solely on the basis of federal versus state power. The National Immigration Law Center is pursuing a separate challenge, argued more squarely in opposition to racial profiling. (AP, June 25)

    Stay tuned.

  2. Scalia cites pro-slavery laws

    Wonkette and Alternet are among those to point out this gem from Scalia's opinion:

    Notwithstanding "[t]he myth of an era of unrestricted immigration" in the first 100 years of the Republic, the States enacted numerous laws restricting the immigration of certain classes of aliens, including convicted crimi­nals, indigents, persons with contagious diseases, and (in Southern States) freed blacks. State laws not only provided for the removal of unwanted immigrants but also imposed penalties on unlawfully present aliens and those who aided their immigration.

    Ah yes, Republican nostalgia for those halcyon days before the 14th Amendment… How touching.

  3. Arpaio rides again
    The US Department of Justice has asked the US District Court for the District of Arizona to reject the request by Maricopa County Sheriff Joe Arpaio to dismiss the lawsuit pending against him that claims his office discriminated against Latinos and disregarded their constitutional rights. The DoJ filed a suit in May against Maricopa County, Arizona, the Maricopa County Sheriff’s Office and Arpaio alleging that they were engaging in racial profiling of Latinos, punishing inmates for speaking Spanish and conducting immigration patrols based solely on community complaints that there were individuals with dark skin roaming around the neighbor despite the fact that no crime was reported.

    The DoJ had conducted a comprehensive and independent investigation initiated in June 2008 under Section 14141 of the Violent Crime Control and Law Enforcement Act of 1994 and Title VI of the Civil Rights Act of 1964. After the DOJ found reasonable cause that the sheriff’s office engage in a pattern of discriminatory practice, it filed a suit against Arpaio. (Jurist, June 27)

    Something to ask yourself when weighing whether to vote for Barack Obama—Would Mitt Romney’s Justice Department pursue this case?