Reading the Supreme Court’s decision largely overturning the Arizona immigration law, which served as the model for much of Georgia’s immigration law as well….
Court notes that “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.” That suggests President Obama was well within his constitutional powers with his mini-DREAM act order last week.
The majority opinion states:
“It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States….
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.”
The Court tossed an Arizona provision making it a state crime to be in Arizona in violation of federal immigration law. It also threw out a provision making it illegal for an illegal immigrant to seek work in Arizona.
It also tossed Section 6 of the Arizona law, which as Justice Kennedy notes in his majority opinion “authorizes officers to arrest without a warrant a person ‘the officer has probable cause to believe . . . has committed any public offense that makes the person removable from the United States,’” or in other words is here illegally.
“If the police stop someone based on nothing more than possible removability, the usual predicate for an arrest is absent,” Kennedy writes. “… This would allow the state to achieve its own immigration policy. The result could be unnecessary harassment
of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed.”
The sole surviving section of the law requires state law enforcement to check the immigration status of everybody it takes into custody. And that part of the law may stand only for the time being. The justices want to see how that part of the law actually works in practice, but they made it clear that they are dubious that it will withstand future constitutional scrutiny.
For example, Kennedy notes the case of someone who is stopped for a jaywalking violation. If that person is detained in jail while his or her immigration status is checked — something that would not happen for a simple jaywalking case — such prolonged detention would violate the Constitution.
It was a 5-3 decision, with Justice Kagan recusing herself because she was involved in the case in her previous job as solicitor general. The three justices in the minority were Scalia, Thomas and Alito.
Scalia’s dissent is quite broad to the point of radical. He begins by complaining that the majority opinion “deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there,” in effect endorsing the novel concept that states have a constitutional right to their own immigration policies independent of that of the federal government.
“Even in its international relations, the federal government must live with the inconvenient fact that it is a Union of independent states, who have their own sovereign powers,” Scalia writes.
Just as remarkably, Scalia takes the opportunity to attack Obama’s announcement last week that illegal immigrants brought here as children will not be deported, a topic not at issue in this case.
“The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conducting as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the non-enforcement program envisions, will necessarily be deducted from immigration enforcement.”
Neither Thomas nor Alito embrace Scalia’s extremism in their own dissents.
– Jay Bookman