Supreme Court Upholds "Heart" Of AZ Immigration Law


While we are left to wait until Thursday for the Supreme Court’s decision on Obamacare, they did hand down their ruling on SB1070, the Arizona immigration law. In a split decision, the court upheld the law in part and struck it down in part. You can read the court’s opinion here.

Kevin Russell writes the shorter version on the relevant parts,

1. Police Checks. Section 2(B) of the law requires the police to check the immigration status of persons whom they detain before releasing them. It also allows the police to stop and detain anyone suspected of being an undocumented immigrant. The Court held that the lower courts were wrong to prevent this provision from going into effect while its lawfulness is being litigated. It was not sufficiently clear that the provision would be held preempted, the Court held. The Court took pains to point out that the law, on its face, prohibits stops based on race or national origin and provides that the stops must be conducted consistent with federal immigration and civil rights laws. However, it held open that the provision could eventually be invalidated after trial.

2. State Law Crime of Being In The Country Illegally. Although federal law already makes it illegal for someone to be in the country without proper authorization, Section 3 of the Arizona statute also makes it a state crime, subject to additional fines and possible imprisonment. The Court held that this provision was preempted and cannot be enforced. The Court held that Congress has left no room for states to regulate in this field, even to implement the federal prohibition.

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3. Ban on Working In The State. Section 5(C) of the statute also makes it a state crime for undocumented immigrants from applying for a job or working in the state. It is also held preempted as imposing an obstacle to the federal regulatory system. Because Congress obviously chose not to make working in the country without proper authorization a federal crime, states cannot enact additional criminal penalties Congress decided not to impose.

4. Warrantless Arrest Of Individuals Believed To Have Committed A Deportable Crime. Section 6 of the statute authorizes state law enforcement officials to arrest without a warrant any individual otherwise lawfully in the country, if law enforcement officials have probable cause to believe the individual has committed a deportable offense. The Court held that this provision is preempted. Whether and when to arrest someone for being unlawfully in the country is a question solely for the federal government.

What is interesting is that the three sections that the court failed to uphold, are the federal government’s responsibility. The obvious question everyone should be asking then is why is the federal government not doing its job?

In a 5-3 vote the court struck numbers 2 and 3 above. Roberts and Kennedy joined the court’s liberals in the decision.

Only Justices Thomas and Scalia stood in dissent last provision in a 6-2 vote, which would have required immigrants to carry immigration papers or be in violation of state law.

Governor Jan Brewer (R-AZ) gave praise to the fact that “the heart” of the immigration law stood up. “Today’s decision by the U.S. Supreme Court is a victory for the rule of law,” Brewer said in a statement. “After more than two years of legal challenges, the heart of S.B. 1070 can now be implemented in accordance with the U.S. Constitution.”

While she ignored the three sections that were struck down, she did say that the state would focus on “the implementation of this law an even-handed manner that lives up to our highest ideals as American citizens.”

She added, “Law enforcement will be held accountable should this statute be misused in a fashion that violates an individual’s civil rights.”

Justice Kennedy wrote, concerning what he believed to be an intrusion into federal territory by the state of Arizona, “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 cause by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law.”

Justice Antonin Scalila, in his dissent said,

“Arizona has moved to protect its sovereignty — not in contradiction of federal law, but in complete compliance with it,” Scalia wrote. “The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.”

While it is not only possible, but likely that there will be challenges to the part upheld in the court’s ruling, for now the issue has been settled and those who are found to be illegal when stopped, will be dealt with according to the law.

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