Supreme Court ruling was clear defeat for Arizona, say legal experts
Politicans, both local and national, have split on the meaning of the Supreme Court's decision on Arizona's law in immigration. Both the White House and Arizona Gov. Janet Brewer claimed victory. Former Arizona state Senate President Russell Pearce, the architect of the SB 1070, called the decision "a huge win."
But many legal commentators disagree with Pearce and Brewer. They saw the decision as a defeat for Arizona and the preeminence of the federal government in matters of immigration.
Greg Magarian, a constitutional law professor at Washington University, called it a "big win for the administration." John Ammann, a law professor at Saint Louis University, said it was a strong message against states taking immigration into their own hands.
Peter Spiro, a Temple University law professor and immigration expert, said on a Wall Street Journal law blog, "I think this is mostly a victory for opponents of the law."
All three of those provisions of Arizona's controversial immigration law were struck down by the U.S. Supreme Court on Monday because they are preempted by federal immigration law. Preemption means that where the federal government has occupied the field, as it has with immigration, states cannot pass laws that interfere with federal law.
In other words, Arizona cannot make it a crime to live in the state as an undocumented immigrant. It cannot make it a crime for an undocumented resident to work or seek a job. It cannot arrest a person based solely on information that the person is deportable.
One provision of Arizona's law was upheld, with important limitations. If a person is arrested for a crime, police can ask for a driver's license or other papers. If the person has a driver's license, the immigration inquiry ends. If the person does not have papers and there is a reasonable suspicion the person may be deportable, police can contact federal immigration authorities to check on the person's status. But Justice Anthony M. Kennedy, writing for the court, said police couldn't unreasonably delay a person's release while making the immigration inquiry. A person stopped for jaywalking, for example, can't be held while police check with the feds.
Spiro noted that the provisions struck down would have allowed the state to put undocumented residents in jail. The one that was narrowly upheld "really doesn’t have any teeth," said Spiro. It allows state officials to call U.S. Immigration and Customs Enforcement, "but ICE doesn’t necessarily have to do anything in response to the state’s call. And that’s part of why I really think this is mostly a win for the law’s opponents. Two of the three provisions that were struck down outright did have teeth — they allowed the state to put an alien in jail."
Richard T. Middleton, a political scientist at the University of Missouri at St. Louis, predicted in an email that the court's decision would trigger a new round of state laws aimed at making the lives of undocumented residents miserable.
"We should expect some legislators to regroup and retool their efforts to promulgate legislation aimed at promoting the 'self-deportation' of persons unlawfully present in their states. The next go round these legislators will be more careful, more clever, and better educated. We have not seen the end of this battle between the states and the federal government in the area of immigration."
Missouri officials said that the Missouri's immigration law wouldn't be affected. Legal experts generally agreed but said that two provisions may not withstand the Arizona ruling.
Ammann noted that the Missouri makes it a crime to transport illegal aliens for a job. "The Supreme Court today said you can't make it a crime for an alien to seek work," said Ammann in an email, "so I don't think you can make it a crime to take someone to seek work."
Anthony Rothert, legal director of the ACLU of Eastern Missouri, said in an email that the "Missouri law denying bail to persons a judge thinks might be undocumented...could be in real trouble. The Supreme Court made clear that the government cannot prolong detention based on a suspicion that an individual is undocumented." He added, however, that "in practice it seems like judges and prosecutors have ignored Missouri's statute."
Rothert said that the decision showed that Valley Park was wise five years ago to back away from a law that would have imposed housing restrictions on undocumented people. The Supreme Court decision suggests such a law would be unconstitutional.
Some of the court's comments could be read as relevant to the president's recent executive order announcing the decision not to expel most immigrants brought to the United States as children. Writing for the majority, Kennedy said:
"Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service."
In a bitter dissent read from the bench, Justice Antonin Scalia took the unusual step of directly criticizing the executive order, even though it was not part of the case.
“The president has said that the new program is ‘the right thing to do’ in light of Congress’ failure to pass the administration’s proposed revision of the immigration laws." he said. "Perhaps it is, though Arizona may not think so. But to say, as the court does, that Arizona contradicts federal law by enforcing applications of federal immigration law that the president declines to enforce boggles the mind."
Scalia argued that the original understanding of the Constitution permitted states to patrol their borders and deport people on their own. In fact, he said that the 1798 controversy over the Alien and Sedition Act involved the ability of states to deport aliens every bit as much as it involved the free press issues for which that controversy is known.
Middleton at Saint Louis University Law School said that Scalia's analysis ignored more than a century of law. He wrote in an email, "as an astute scholar of legal history, Scalia surprisingly fails to give recognition to important decisions the court has handed down holding such sovereign power is incident to federal, not state, power."
Middleton cited two immigration cases from the late 19th century establishing immigration as a matter of federal sovereignty and added, "I am not so sure why Scalia finds it such an unconscionable idea the federal government, not the states, have sovereign power in the domain of policies touching upon and affecting immigration. There are 123 years of U.S. Supreme Court case precedence to support this doctrine."
Kennedy wrote in the majority opinion that Arizona had ignored the basic premise of preemption -- "that states may not enter, in any respect, an area the federal government has reserved for itself."
Kennedy said that Arizona couldn't make a crime out of working as an undocumented resident because "Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment."
In conclusion, Kennedy wrote: "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."
The vote to strike down the three provisions of Arizona's law was 5-3 with Chief Justice John Roberts joining Kennedy and the liberals. Justice Elena Kagan recused herself because of her involvement with the case in the Justice Department.