Feel free to join me in a quick reading of the U.S. Supreme Court decision on the Arizona immigration law by clicking here.
My first impression is that, if you are a supporter of Georgia’s version, HB 87, your cheering may end up a little forced by the end of the document.
Yes, a five-member majority of the high court upheld the portion of the Arizona law (which has a parallel in the Georgia statute) that allows law enforcement to run citizenship checks on those arrested for other reasons, but the court declared that this approval was tentative and subject to future rulings.
Other sections of the Arizona law were overturned, including a provision making it a misdemeanor for an illegal immigrant to apply for a job. While acknowledging the state of Arizona’s legitimate concerns, the bulk of the language reasserts the federal government’s supremacy in immigration.
Walk with me through some excerpts of the majority decision written by Justice Anthony Kennedy:
The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens….
The federal power to determine immigration policy is well settled. Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws….
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…..
Congress has specified which aliens may be removed from the United States and the procedures for doing so. Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law….
Removal is a civil, not criminal, matter. A principal feature of the removal system is the broad discretion exercised by immigration officials. 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. Some discretionary decisions involve policy choices that bear on this Nation’s international relations……
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. Hundreds of thousands of deportable aliens are apprehended in Arizona each year….
Statistics alone do not capture the full extent of Arizona’s concerns. Accounts in the record suggest there is an “epidemic of crime, safety risks, serious property damage, and environmental problems” associated with the influx of illegal migration across private land near the Mexican border….
Phoenix is a major city of the United States, yet signs along an interstate highway 30 miles to the south warn the public to stay away. One reads, “DANGER—PUBLIC WARNING—TRAVEL NOT RECOMMENDED / Active Drug and Human Smuggling Area / Visitors May Encounter Armed Criminals and Smuggling Vehicles Traveling at High Rates of Speed.” …The problems posed to the State by illegal immigration must not be underestimated…..
On making it a crime to walk around without papers:
Section 3 of S. B. 1070 creates a new state misdemeanor. It forbids the “willful failure to complete or carry an alien registration document …. If [Section 3] of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations, “diminish[ing] the [Federal Government]’s control over enforcement” and “detract[ing] from the ‘integrated scheme of regulation’ created by Congress.”…
Were [Section 3] to come into force, the State would have the power to bring criminal charges against individuals for violating a federal law even in circumstances where federal officials in charge of the comprehensive scheme determine that prosecution would frustrate federal policies…..
On making it a crime to apply for work:
Unlike [Section 3], which replicates federal statutory requirements, [Section 5(C)] enacts a state criminal prohibition where no federal counterpart exists. The provision makes it a state misdemeanor for “an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor” in Arizona. …Violations can be punished by a $2,500 fine and incarceration for up to six months…..
The legislative background of [a federal statute mandating the use of E-Verify] underscores the fact that Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment. A commission established by Congress to study immigration policy and to make recommendations concluded these penalties would be “unnecessary and unworkable.”
On empowering state law enforcement officers to arrest “deportable” aliens:
Section 6 of S. B. 1070 provides that a state officer, “without a warrant, may arrest a person if the officer has probable cause to believe . . . [the person] has committed any public offense that makes [him] removable from the United States.” Ariz. Rev. Stat. Ann. §13–3883(A)(5) (West Supp. 2011). The United States argues that arrests authorized by this statute would be an obstacle to the removal system Congress created. As a general rule, it is not a crime for a removable alien to remain present in the United States. ….
Section 6 attempts to provide state officers even greater authority to arrest aliens on the basis of possible removablity than Congress has given to trained federal immigration officers. Under state law, officers who believe an alien is removable by reason of some “public offense” would have the power to conduct an arrest on that basis regardless of whether a federal warrant has issued or the alien is likely to escape.
This state authority could be exercised without any input from the Federal Government about whether an arrest is warranted in a particular case. 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.
This is not the system Congress created. Federal law specifies limited circumstances in which state officers may perform the functions of an immigration officer……
By authorizing state officers to decide whether an alien should be detained for being removable, [Section 6] violates the principle that the removal process is entrusted to the discretion of the Federal Government….
On requiring law enforcement to check the citizenship of stopped individuals:
Section 2(B) of S. B. 1070 requires state officers to make a “reasonable attempt . . . to determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” …The law also provides that “[a]ny person who is arrested shall have the person’s immigration status determined before the person is released.”…..
However the law is interpreted, if Section 2(B) only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive pre-emption—at least absent some showing that it has other consequences that are adverse to federal law and its objectives.
There is no need in this case to address whether reasonable suspicion of illegal entry or another immigration crime would be a legitimate basis for prolonging a detention, or whether this too would be preempted by federal law. ….
The nature and timing of this case counsel caution in evaluating the validity of Section 2(B). The Federal Government has brought suit against a sovereign State to challenge the provision even before the law has gone into effect. There is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume Section 2(B) will be construed in a way that creates a conflict with federal law……
The dissent by Justice Antonin Scalia will no doubt spark some conversation, including this portion that defended a state’s rights to restrict access:
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…..
In fact, the controversy surrounding the Alien and Sedition Acts involved a debate over whether, under the Constitution, the States had exclusive authority to enact such immigration laws. Criticism of the Sedition Act has become a prominent feature of our First Amendment jurisprudence, see, e.g., New York Times Co. v. Sullivan… but one of the Alien Acts also aroused controversy at the time:
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That it shall be lawful for the President of the United States at any time during the continuance of this act, to order all such aliens as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the government thereof, to depart out of the territory of the United States . . . .”
- By Jim Galloway, Political Insider