As James Joyner noted this morning, the Supreme Court handed down its decision in the lawsuit challenging Arizona’s controversial immigration law today, and many are having a tough time determining whether to characterize this as a win or a loss and for whom, largely because the case was a mixed bag for all parties involved:
The Supreme Court on Monday delivered a split decision on Arizona’s tough 2010 immigration law, upholding its most controversial provision but blocking the implementation of others.
The court unanimously sustained the law’s centerpiece, the one critics have called its “show me your papers” provision. It requires state law enforcement officials to determine the immigration status of anyone they stop or arrest if there is reason to suspect that the individual might be an illegal immigrant.
The justices parted ways on three other provisions. Justice Anthony M. Kennedy, writing for five members of the court, said the federal government’s broad powers in setting immigration policy meant that other parts of the state law could not be enforced.
“The national government has significant power to regulate immigration,” Justice Kennedy wrote. “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,” Justice Kennedy added.
The decision was a partial victory for the Obama administration, which had sued to block several parts of the law.
In a statement released later on Monday, President Obama said that he was “pleased” with the Court’s decision to strike down some aspects of the law, but he voiced his concern about the remaining provision.
“I agree with the Court that individuals cannot be detained solely to verify their immigration status. No American should ever live under a cloud of suspicion just because of what they look like,” Mr. Obama said. “Going forward, we must ensure that Arizona law enforcement officials do not enforce this law in a manner that undermines the civil rights of Americans.”
Monday’s ruling was a partial rebuke for state officials who had argued that they were entitled to supplement federal efforts to address illegal immigration.
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The three provisions blocked by the majority were: making it a crime under state law for immigrants to fail to register under a federal law, making it a crime for illegal immigrants to work or to try find work, and allowing the police to arrest people without warrants if they have probable cause to believe that they have done things that would make them deportable under federal law.
Because of the fact that the most controversial part of the law, the provision that allows Arizona police to verify the immigration status of someone detained or stopped on another charge, was upheld many are characterizing this as a win for the state of Arizona and only a partial victory for the law’s opponents. That’s certainly the tack that Greg Sargent seems to take in his post on the decision:
There are several problems here. The first is that this could lead to racial profiling, says Marshall Fitz of the Center for American Progress. “It’s not a sweeping victory for the other side, but the provision we most worried about was the one giving cops the ability to stop people and ask for their papers,” Fitz says. “We think this will lead inevitably to racial profiling, based on the way they sound and the way they look.”
Second: The fact that the High Court has suggested that there are ways for states to implement and/or interpret this law could encourage other states to try their own versions of it, rather than dissuade them from doing so. Efforts to emulate the Arizona law are already underway in a handful of states.
“There are lots of Joe Arpaios out there,” Fitz says, in a reference to the Arizona sheriff. “States will say, `Look, they upheld this.’”
That is certainly a concern and, indeed, the Court itself, in the majority opinion notes that there are still significant concerns about how this particular part of the law will be enforced and even whether it can ever possibly be enforced in a non-discriminatory manner. Here’s how Justice Kennedy put it while addressing that particular issue:
Some who support the challenge to §2(B) argue that, in practice, state officers will be required to delay the release of some detainees for no reason other than to verify their immigration status. See, e.g., Brief for Former Arizona Attorney General Terry Goddard et al. as Amici Curiae 37, n. 49. Detaining individuals solely to verify their immigration status would raise constitutional concerns. See, e.g., Arizona v. Johnson, 555 U. S. 323, 333 (2009); Illinois v. Caballes, 543 U. S. 405, 407 (2005) (“A seizure that isjustified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission”).And it would disrupt the federal framework to put stateofficers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision. Cf. Part IV-C, supra (concluding that Arizona may not authorize warrantless arrests on the basis ofremovability). The program put in place by Congress doe snot allow state or local officers to adopt this enforcement mechanism.
But §2(B) could be read to avoid these concerns. To take one example, a person might be stopped for jaywalking in Tucson and be unable to produce identification. The first sentence of §2(B) instructs officers to make a “reasonable” attempt to verify his immigration status with ICE if thereis reasonable suspicion that his presence in the United States is unlawful. The state courts may conclude that, unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigrationinquiry. See Reply Brief for Petitioners 12, n. 4 (“[Section2(B)] does not require the verification be completed during the stop or detention if that is not reasonable or practicable”); cf. Muehler v. Mena, 544 U. S. 93, 101 (2005) (findingno Fourth Amendment violation where questioning about immigration status did not prolong a stop).
To take another example, a person might be held pending release on a charge of driving under the influence ofalcohol. As this goes beyond a mere stop, the arrestee(unlike the jaywalker) would appear to be subject to the categorical requirement in the second sentence of §2(B)that “[a]ny person who is arrested shall have the person’s immigration status determined before [he] is released.” State courts may read this as an instruction to initiate astatus check every time someone is arrested, or in some subset of those cases, rather than as a command to hold the person until the check is complete no matter the circumstances. Even if the law is read as an instruction to complete a check while the person is in custody, moreover, it is not clear at this stage and on this record that the verification process would result in prolonged detention.
However the law is interpreted, if §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.
The important thing to remember about this case, of course, is that the the issues before the Court were very narrow. The only question was whether the contested provisions of the law should be struck down because they are pre-empted by Federal Law on the subject. With respect to the three provisions that were struck down, each of which essentially attempted to make being an undocumented immigrant a violation of state law, the Court found that Federal law in the area of immigration pre-empted the states from making such a law.
With regarding to the “show me your papers” part of the law, though, the Court unanimously held that there was no pre-emption which seems like the right decision. The act of a state or county police officer checking to determine if a person is in the country legally doesn’t strike me as something that interfers with the operation of Federal Law at all.
However, when it comes to this provision of the Arizona law, it’s worth noting that Arizona has barely won half the battle here and that we are likely to see additional litigation out of the state based primarily on the manner in which this law is enforced. As I noted in my post about the oral arguments in this case, the Federal Government made clear that it was not basing its challenge to any provision of SB1070 on allegations of racial profiling or the possibility that the law will be disproportionally enforced against people of Hispanic decent. These are grounds on which the “show me your papers” provision would seem to be particularly vulnerable. At the same time, though this type of argument cannot be made until the law is actually being enforced and their is actual evidence of discriminatory patterns, or profiling, that can be presented to a Court. The Supreme Court’s decision seems to make clear that the law is likely to face scrutiny on these grounds at some point in the future, and Arizona is likely to have a tough time indeed fighting allegations that Hispanics are disproportionally impacted by the law.
On the whole, then, it would seem that the Court got the case mostly right and that we’ll have to wait for future litigation to determine the true Constitutionality of the “show me your papers” provision. Politically it is, as I noted, largely a mixed bag for both the Administration and the State of Arizona.
Here’s the opinion:
