Monday, June 25, 2012
At Slate, Walter Dellinger splashes cold water on the idea that Arizona was the winner in today's Supreme Court decision on SB 1070:
So what does Arizona win? A temporary reprieve for one provision that will be upheld by the court only if Arizona abandons the language that requires detaining a person until their immigration status can be verified. That may be something. But not nearly as much as that which was invalidated.
More generally, the tenor of the opinion of the court is a vindication of federal authority over immigration. “Federal law makes a single sovereign responsible for maintaining a comprehensive and unified system to keep track of aliens within the Nation’s borders,” and quotes from an earlier decision that “Conflict is imminent whenever two separate remedies are brought to bear on the same activity.” It will take at least several days of analysis before one can confidently predict what today’s decision will mean for immigration laws enacted recently by other states. But there is virtually nothing in the court’s opinion that should give lawmakers in those other states any comfort whatsoever.
At its core, S.B. 1070 is a use of the state police power and state criminal law to enforce and punish federal immigration violators; at its core this is what a majority of the Supreme Court rejected.
In surprisingly strong terms, the Supreme Court sided with the federal government and upheld the Ninth Circuit’s preliminary injunction of Sections 3, 5 and 6 of Arizona’s S.B. 1070 law. Section 3 criminalized non-compliance with federal immigration registration laws; the Court said Arizona’s law interfered with the federal statute. Section 5 criminalized non-citizens’ working without authorization, which federal law did not criminalize. The Court said Arizona could not criminalize something that Congress had determined not to. Section 6 authorized arrests for civil immigration violations; the Court said that was a federal prerogative. (We explain the provisions of S.B. 1070 in greater detail here).
In a 5-3 decision written by Justice Kennedy, and joined by Chief Justice Roberts, and Justices Ginsburg, Breyer and Sotomayor, the Court reaffirmed the almost unique status of immigration law and policy in the federal domain. If states can’t act where the federal government has acted, or where the federal government has not acted, and cannot even carry out civil law on their own, there is little left for states that want to create their own immigration laws.
Peter Spiro calls it a win for the feds:
This is a nominally split decision, but the Court’s opinion in Arizona v. United States is mostly a victory for S.B. 1070’s opponents. Although the Court upheld the “check your papers” provision, it struck down three others that would have had much greater impact on the ground. Justice Kennedy’s opinion validates broad federal authority over immigration, allowing only marginal participation on the part of states. The decision will take a lot of wind out of restrictionist sails at the state level.
The result could have been predicted coming out of the oral arguments in April. More surprising is the tone, which is solicitous of state power only in passing.
In other words, although all agree that federal authorities have the final say regarding which aliens are permitted to remain in the country, today’s decision confirmed that States have an important role to play in immigration law enforcement. Arizona has every right to attempt to determine who among those in its custody are in the country illegally, and then offer to turn over to the federal government those determined to be illegal. As the Court recognized, Section 2(B) provides that Arizona officials will do no more than that; any decision regarding whether to deport the illegal aliens or release them will be up to the federal government.
Jay Sekulow''s takeaway:
The Court’s decision in Arizona v. United States is just one chapter (albeit an important one) in the ongoing story of how the federal, state, and local governments wrestle with the hot button issue of illegal immigration. Importantly, the Court did not carve the States out of the story entirely by adopting a blanket rule that whatever the Executive Branch says in informal memos or court documents about a State provision represents federal “law” with preemptive power.
In light of the Court’s decision, States will continue to enact provisions that are designed to remain consistent with federal statutes while mitigating the problems caused by the federal government’s failure to adequately address illegal immigration. The Executive Branch will likely continue to attempt to elevate its (often unwritten) policy of under-enforcement or non-enforcement of federal immigration statutes to the level of federal “law” that would create a conflict between state statutes and identical, or nearly identical, federal statutes. The courts will continue to interpret the fine line between federal law that preempts state law and mere Executive Branch preferences that do not. That the States remain major players concerning this issue is a big defeat for the Executive Branch and its attempt to effectively rewrite immigration law through non-enforcement and litigation against the States.