High Court’s Mixed Action on Arizona’s Anti-Immigration Law

June 25, 2012

by Jeremy Leaming

Although the Supreme Court invalidated three key provisions of Arizona’s outlandishly harsh anti-immigrant law, it left in place for the moment the law’s ignoble “show me your papers” measure.

The majority in Arizona v. United States invalidated three provisions of the law, SB 1070, saying they could not be enforced because they conflicted with the federal government’s constitutional authority to set policy on immigration matters. Those provisions included Section 3 criminalizing the failure of persons to carry immigration documents; Section 6, barring undocumented immigrants from seeking work; and Section 6, allowing warrantless arrests when an officer has probable cause to believe a person who has committed a crime is undocumented.

Justice Anthony Kennedy writing for the majority said 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 meetings its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse.”

But Section 2 (B), the “show me your papers” provision was upheld. The provision requires police to make a “reasonable attempt … to determine the immigration status” of persons stopped, arrested or detained on some other legitimate basis if “reasonable suspicion exists that the person” is “unlawfully present in the United States.”

Regardless of how that provision is interpreted, Kennedy said it “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 preemption – at least absent some showing that it has other consequences that are adverse to federal law and its objectives.”

Kennedy, however, said Arizona’s “show me your papers” provision may yet be susceptible to preemption or constitutional challenges. He said today’s opinion “does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.”

Justice Antonin Scalia lodged a concurring and dissenting opinion. But the justice largely favors the ability of Arizona to police its borders in seemingly any way it sees fit.

The majority opinion, Scalia wrote, “deprives States of what most would consider the defining characteristics of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there. Neither the Constitution itself nor even any law passed by Congress supports this result.”

Scalia concluded his opinion with what can only be seen as a wobbly understanding of state sovereignty.

"The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively," Scalia writes. "If securing its terrority in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State."

ACS President Caroline Fredrickson lauded the high court for finding “several key provisions of Arizona’s harsh immigration law to be an affront to the constitutional power of addressing immigration matters that belongs exclusively to the Congress and the president. Although the majority opinion leaves unsettled the fate of Arizona’s ‘show me your papers’ provision, it sends an otherwise strong message affirming the federal government’s authority to set immigration policy.”

She added, however, that one “of the most troubling aspects of today’s Supreme Court action come from the justices who would have upheld all of the challenged provisions of the Arizona law. Those justices reveal a disconcerting disconnect from the reality of what state sovereignty means.”

See Fredrickson’s entire comments on the high court opinion here.

For more discussion on state immigration policy, see video of the ACS 2012 National Convention panel, “The Supreme Court and State Immigration Laws.”