Supreme Court Upholds Arizona Immigration Checks (For Now)

The US Supreme Court has upheld the most controversial provisions of Arizona's immigration law.

The US Supreme Court has upheld the most controversial provisions of Arizona’s immigration law. Or, as the NYT headline puts it, “High Court Rejects Part of Arizona Immigration Law.” WaPo, running the same two paragraph AP story, titles it “Supreme Court strikes down key provisions, but not all, of Arizona immigration law.”

The Supreme Court has struck down key provisions of Arizona’s crackdown on immigrants.

But the court said Monday that one part of the law requiring police to check the status of someone they suspect is not in the United States legally could go forward. Even there, though, the justices said the provision could be subject to additional legal challenges.

The decision has just been handed down and neither the syllabus, the opinions, or extensive analysis is yet available. But the key takeaway seems to be that SCOTUS has both struck down parts of Arizona’s law while upholding the part that we’ve been debating for the past couple of years.

I gather from Lyle Denniston that Scalia, Thomas, and Alito are dissenting in part as they would have upheld the entire bill. Kagan recused herself because she was Solicitor General when the case was brought.

UPDATE: The opinions are out an Kevin Russell has an initial analysis at SCOTUSblog.

Here is a rundown on the Court’s ruling with respect to each relevant challenge:

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.

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 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.

So, again, the provision of the law that got the most attention has been upheld, at least tentatively. The parts of the law that most were unaware of fell on Supremacy Clause grounds.

I’ll be interested in reading Scalia’s dissent to see if I find it persuasive but the strikedowns here strike me as perfectly consistent with the role of states in our system. Immigration policy is rather obviously a foreign policy issue delegated to the Congress.

On the face of it, I’m also inclined to agree that the 2(B) provision is constitutional. As I wrote at the time it came out, I find it outrageous from a public policy standpoint and don’t see how it can be enforced without violating the Equal Protection Clause of the 14th Amendment. But the bill’s framers shrewdly put in language forbidding discriminatory action by police.

I gather that the caveat here is pretty huge: The Court reserves the right to invalidate 2(B) if, once an actual case in controversy arises, it becomes clear that the enforcement is, as a practical matter, discriminatory against people who “look foreign.”

UPDATE 2: YahooNews has titled their report “Supreme Court upholds key part of Arizona immigration law, strikes down rest,” which strikes me as more relevant to the public debate surrounding the law. But I’ve updated my headline for this post from “Supreme Court Upholds Arizona Immigration Law” to the more accurate “Supreme Court Upholds Arizona Immigration Checks (For Now).”

FILED UNDER: Borders and Immigration, Law and the Courts
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. al-Ameda says:

    But the court said Monday that one part of the law requiring police to check the status of someone they suspect is not in the United States legally could go forward. Even there, though, the justices said the provision could be subject to additional legal challenges.

    So, it’s okay to stop any Latino person to check their immigration status?

    This Court is really interesting.

  2. Tsar Nicholas says:

    They tossed out three of the four provisions. Regarding the remaining provision — warrantless checks of immigration status — they in essence punted to Arizona’s state court system, but not before stating that that provision only could survive if narrowly construed. Overall a major defeat for Arizona and in general a major defeat for states’ abilities to engage in police power actions in the illegal immigration arena.

  3. legion says:

    The Tsar actually has it right here – James’ headline is not quite correct. SCOTUS tossed most of the law, based on the Fed’s argument of federal supremacy in things like immigration enforcement. Supremacy doesn’t conflict with the “papers please” part of the AZ law, but they pretty clearly stated that other arguments might be more effective in overturning that provision too. AZ lost _big_ on this one.

  4. KansasMom says:

    SCOTUSblog called it a big win for the Obama administration. The “papers please” provision must be construed very narrowly and is still subject to further litigation. The rest of the law is in the trash can. Arizona most certainly lost this one.

  5. James in LA says:

    The one provision left intact is the one least likely to help Mitt Romney. The ball is in his court.

  6. Chad S says:

    How is losing 3 out of 4(and SCOTUS suggesting that the 4th is in danger for other reasons) a win for Arizona? Also a nice try at slamming the NYT for “spinning it” as a defeat for Arizona lol.

  7. James Joyner says:

    @Chad S: The headlines are all a little clumsy, mine included. My point is that striking down the parts of the Arizona law that most people have never heard of while letting stand the part that everyone’s talking about means that SCOTUS validated the “law” in terms of the controversy.

  8. Scott O. says:
  9. walt moffett says:

    @KansasMom: And by extension, Kris Kobach who has made his fame/notoriety and lunch money on the issue.

  10. Scott says:

    A couple of interesting items:

    1) Scalia wrote:” If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign state”. I didn’t know the states were considered as sovereign. I thought the Civil War settle that question. This is probably a legal language vs common language difference.

    2) I just love how things are viewed differently. WSJ: Supreme Court Upholds Key Part of Arizona Law. CNN: Supreme Court sides with U.S. in Arizona immigration case

  11. KansasMom says:

    @walt moffett: That may be the most appealing aspect of the whole thing. Anything that hurts Kobach is a win in my book.

  12. Chad S says:

    @James Joyner: If your headline was clumsy, I’m sure you have the power to change it to something more accurate. But both the Post and NYT(despite your smear)’s headline are considerably more accurate then your attempt to paint this as a victory for Arizona(which it clearly isn’t).

  13. pajarosucio says:

    @James Joyner: I’m not a lawyer, but it was my understanding the major question in this case concerned the supremacy of federal law. I don’t remember the “reasonable suspicion” provision being discussed during the oral argument. So, it would seem that of the issue being considered by the Court here the law was mainly struck down.

  14. It also allows the police to stop and detain anyone suspected of being an undocumented immigrant.

    This probably is okay as long as “suspected” ends up being based on actual reasonable suspicion rather than “that guy looks hispanic”, which is likely going to end up being what happens in practice. This may be one of those laws that is constitutional on its face, but ends up being unconstitutional as applied.

  15. @Scott:

    I didn’t know the states were considered as sovereign.

    They’re still considered partially sovereign. They have the ability to enact and enforce laws without specific grants of authority from the federal government in most cases.

  16. jan says:

    I was not surprised by today’s immigration ruling, nor disappointed.

    How I am interpreting the stance of the court is that it is upholding the federal government’s power to regulate a uniformity in states as to how immigration laws are to be enforced. Upholding section 2b, still gives the states limited flexibility in monitoring the legal status of people in their state. However, the overall legal exercise of implementing and addressing immigration (legal and illegal) remains in federal hands. To change the standing immigration issues one must first change the heads of government.

  17. Chad S says:

    You need another edit James. “(For now)” still doesn’t accurately describe what happened today.

  18. James Joyner says:

    @Chad S: My understanding of the ruling is that the Court unanimously decided, with Kagan recused, that Arizona absolutely has the right to require its police officers to verify the immigration status of those it has probable cause to believe may not be here legally. The caveat is that the issue may be revisited down the line if cases demonstrate that the way it’s enforced is discriminatatory.

  19. jan says:

    @James Joyner:

    The rhetorical chafing going on here is not really about your phrasing of this decision, but simply a denial that any part of the law is upheld, or at least in question.

  20. PD Shaw says:

    I’ve only read the majority opinion and Alito’s partial concurrence, but I disagree with much of the commentary, they lost and should not have brought this case. The problem for the Obama administration was and is that state/local authorities will be vigorously checking immigration issues and forcing the federal government to choose whether to catch or release them. The administration’s practical/ political complaint, was never a legal one — its federal laws that are supreme to state laws, not any given administration’s method of enforcing federal law.

    Now, that the SCOTUS has approved immigration scrutinization of persons law enforcement had independent grounds to stop, more states will follow suit. Had the administration waited until the bad case arose in which this authority was abused, it would have had the perfect test case.

  21. PD Shaw says:

    @Scott: :” If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign state.”

    Scalia is criticizing the majority opinon’s statement:

    Federalism, central to the constitutional design, adopts the principle that both the National and State Governments have elements of sovereignty the other is bound to respect.

    IOW, Scalia believes that the majority is giving token acknowledgement of this undisputed principle.

  22. Andy says:

    That’s good analysis PD.

  23. PD Shaw says:

    @pajarosucio: The law has two steps.

    First, law enforcement must make a “lawful stop, detention or arrest” under a non-immigration law. These are all terms of art, that implicitly mean that the officer must have either reasonable suspicition, probable cause or a warrant on an independent matter. They’ve come into a law enforcement protocal, as opposed to stopping them on suspicion of not having documents.

    Second, if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States,” then reasonable attempts must be made to determine their status. That’s in the statute, and again “reasonable suspicion” is a term of legal art.

  24. Tano says:

    @James Joyner:

    My understanding of the ruling is that the Court unanimously decided, with Kagan recused, that Arizona absolutely has the right to require its police officers to verify the immigration status of those it has probable cause to believe may not be here legally.

    Really??? Absolutely has the right?
    Funny, but as I read it, they did not in any way “uphold” the provision. They did allow it to be enforced while it is being litigated, so yeah, that is some small thing. But given this sentence:”However, it held open that the provision could eventually be invalidated after trial.” – how do you conclude from that that the court has decided that Arizona absolutely has the right…..”

    Am I missing something in my reading of this – that the Court has sent the provision back to the lower court for litigation? How on earth is that seen as “upholding the provision”?

  25. Chad S says:

    @James Joyner: Thats 25% of what they passed in SB1070. Your headline still implies that the Court upheld the law. They didn’t.

    @jan: Yes, that’s why my first comment started with “How is losing 3 out of 4”. *rolleyes*

  26. James Joyner says:

    @Tano: The ruling essentially says that the law, as written, is Constitutional but that they hold open the possibility that the enforcement of the law will run afoul of the Equal Protection Clause. That won’t be known until there’s a test case, if not a series of them.

  27. walt moffett and KansasMom are right: Kobach is a horrible, horrible person. It’s much better to side w/ the MX govt, Koch, Soros, crooked businesses, and crooked pols.

    Anywhoo, the AZ law is mostly worthless now. They can locate IAs, but they need the DHS to come and pick them up. The DHS tends to “prioritize” that.

    The only way to make lemonade is to do what I suggest in my post on this: publicize far and wide the numbers of IAs ID’ed vs. the number picked up.

  28. Tano says:

    @James Joyner:

    The ruling essentially says that the law, as written, is Constitutional but that they hold open the possibility that the enforcement of the law will run afoul of the Equal Protection Clause.

    I don’t think it goes that far James. As I understand it, not only is implementation of the law going to be reviewed, but the precise implementation of it as well. Nina Totenberg described the ruling thusly:

    “”The state courts have not yet construed 2(B). If the state courts go on to construe it as, ‘you stop the person and can resolve the issue right at the stop, or you release the person and look into it later,’ that may be permitted – but it won’t be if you detain the person until you resolve the issue.”

    I think that latter approach is what AZ was really hoping to be allowed to do, and is the most controversial aspect of the law. Rather than upholding it, the Court seems to be warning against it. There seems very little for the GOP in this ruling…