A split decision yields a split result. One of the two major Supreme Court decisions that have been eagerly anticipated this year was handed down today – the immigration policy within Arizona’s SB 1070 law (the other, more far-reaching decision will rule on ObamaCare, coming probably this week – the Supreme Court wisely will not overwhelm the public with two such decisions in one day). Chief Justice Roberts sided with Justices Kennedy, Ginsburg, Sotomayor and Breyer. Justices Scalia, Alito and Thomas dissented. Kagan recused herself.
There were four principle provisions or sections of that law and, as I discussed earlier, the court’s decision struck down two of the sections – 3 and 5(C) – that dealt with making it a state crime to violate federal statutes, and assigning additional procedures on aliens. I erred in thinking that §6 would be upheld (allowing officers to stop and investigate someone on suspicion of illegal status in the US), tying it too closely with the §2(B) that was the heart of the question (that of investigating the resident status of someone in conjunction with being stopped on suspicion of another offense). But note that §2(B) was upheld unanimously.
The decision leaves open, and frankly practically invites, further litigation of the law once the state courts begin its application. The decision was written by Justice Kennedy, with symbolic reference to his swing-vote status.
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….
There is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2(B) will be construed in a way that creates a conflict with federal law….
This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect…
The United States has established that §§3, 5(C), and 6 of S. B. 1070 are preempted. It was improper, however, to enjoin §2(B) before the state courts had an opportunity to construe it and without some showing that enforcement of the provision in fact conflicts with federal immigration law and its objectives.
Not untypically, the dissents provide more interesting reading, particularly considering the sources. Justice Scalia, for example:
What this case comes down to, then, is whether the Arizona law conflicts with federal immigration law – whether it excludes those whom federal law would admit, or admits those whom federal law would exclude. It does not purport to do so. It applies only to aliens who neither possess a privilege to be present under federal law nor have been removed pursuant to the Federal Government’s inherent authority….
The most important point is that, as we have discussed, Arizona is entitled to have “its own immigration policy” – including a more rigorous enforcement policy – so long as that does not conflict with federal law. The Court says, as though the point is utterly dispositive, that “it is not a crime for a removable alien to remain present in the United States,” ante, at 15. It is not a federal crime, to be sure. But there is no reason Arizona cannot make it a state crime for a removable alien (or any illegal alien, for that matter) to remain present in Arizona….
The President said at a news conference that the new program is ‘the right thing to do’ in light of Congress’s failure to pass the Administration’s proposed revision of the Immigration Act. Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.
The Court opinion’s looming specter of inutterable horror – ‘[i]f §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations,’ ante, at 10 – seems to me not so horrible and even less looming. But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Government that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?
A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding? Today’s judgment surely fails that test. At the Constitutional Convention of 1787, the delegates contended with “the jealousy of the states with regard to their sovereignty.” … Through ratification of the fundamental charter that the Convention produced, the States ceded much of their sovereignty to the Federal Government. But much of it remained jealously guarded – as reflected in the innumerable proposals that never left Independence Hall. Now, imagine a provision – perhaps inserted right after Art. I, §8, cl. 4, the Naturalization Clause – which included among the enumerated powers of Congress “To establish Limitations upon Immigration that will be exclusive and that will be enforced only to the extent the President deems appropriate.” The delegates to the Grand Convention would have rushed to the exits. . . .
Arizona has moved to protect its sovereignty – not in contradiction of federal law, but in complete compliance with it. 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. I dissent.
Justice Alito added a separate dissent:
The United States’ attack on §2(B) is quite remarkable. The United States suggests that a state law may be preempted, not because it conflicts with a federal statute or regulation, but because it is inconsistent with a federal agency’s current enforcement priorities. Those priorities, however, are not law. They are nothing more than agency policy. I am aware of no decision of this Court recognizing that mere policy can have pre-emptive force….
It bears emphasizing that §6 does not mandate the warrantless apprehension of all aliens who have committed crimes for which they are removable. Instead, it only grants state and local officers permission to make such arrests. The trouble with this premature, facial challenge is that it affords Arizona no opportunity to implement its law in a way that would avoid any potential conflicts with federal law.Justice Thomas argued in favour of the entire bill in yet another separate dissent, and explained each section in turn:
I agree with JUSTICE SCALIA that federal immigration law does not pre-empt any of the challenged provisions of S. B. 1070. I reach that conclusion, however, for the simple reason that there is no conflict between the “ordinary meanin[g]” of the relevant federal laws and that of the four provisions of Arizona law at issue here. . . . Section 2(B) of S. B. 1070 provides that, when Arizona law enforcement officers reasonably suspect that a person they have lawfully stopped, detained, or arrested is unlawfully present, “a reasonable attempt shall be made, when practicable, to determine the immigration status of the person” pursuant to the verification procedure established by Congress in 8 U. S. C. §1373(c). . . Nothing in the text of that or any other federal statute prohibits Arizona from directing its officers to make immigration-related inquiries in these situations. To the contrary, federal law expressly states that “no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from” federal officials “information regarding the immigration status” of an alien. 8 U. S. C. §1644. And, federal law imposes an affirmative obligation on federal officials to respond to a State’s immigration-related inquiries.§1373(c).
Section 6 of S. B. 1070 authorizes Arizona law enforcement officers to make warrantless arrests when there is probable cause to believe that an arrestee has committed a public offense that renders him removable under federal immigration law. States, as sovereigns, have inherent authority to conduct arrests for violations of federal law, unless and until Congress removes that authority. . . . Here, no federal statute purports to withdraw that authority. As JUSTICE SCALIA notes, ante, at 12 (opinion concurring in part and dissenting in part), federal law does limit the authority of federal officials to arrest removable aliens, but those statutes do not apply to state officers. . . .
Section 3 simply incorporates federal registration standards. Unlike the Court, I would not hold that Congress pre-empted the field of enforcing those standards. “[O]ur recent cases have frequently rejected field pre-emption in the absence of statutory language expressly requiring it.” Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U. S. 564, 617 (1997) (THOMAS, J., dissenting). . . .
Section 5(C) of S. B. 1070 prohibits unlawfully present aliens from knowingly applying for, soliciting, or performing work in Arizona. Section 5(C) operates only on individuals whom Congress has already declared ineligible to work in the United States. Nothing in the text of the federal immigration laws prohibits States from imposing their own criminal penalties on such individuals. . . .
Despite the lack of any conflict between the ordinarymeaning of the Arizona law and that of the federal laws at issue here, the Court holds that various provisions of the Arizona law are pre-empted because they “stan[d] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” . . . I have explained that the “purposes and objectives” theory of implied pre-emption is inconsistent with the Constitution because it invites courts to engage in freewheeling speculation about congressional purpose that roams well beyond statutory text. . . .
During the debate over SB 1070, Mr. Obama and Attorney General Eric H. Holder Jr. both criticized the law as opening up the chance for racial profiling. But when they sued, they didn’t make that argument, instead confining their challenge to issues of federal versus state power.
The racial profiling challenge could still come later, though, as the law begins to be enforced – something Mrs. Brewer said she expects.*****
Update: In a stunning move, within hours of the Supreme Court decision, the Obama administration has announced that it is suspending existing agreements with the state of Arizona over enforcement of immigration laws, and has directed Homeland Security to decline calls from Arizona police that report illegal aliens. This specifically refers to the Immigration and Nationality Act (1965), §287(g). Predictably, Governor Jan Brewer was furious:
As though we needed any more evidence, President Obama has demonstrated anew his utter disregard for the safety and security of the Arizona people. Within the last two hours, I have been notified the Obama administration has revoked the 287(g) agreement under the authority of which Arizona law enforcement officers have partnered with the federal government in the enforcement of immigration law.
Of course, it is no coincidence that this announcement comes immediately on the heels of the U.S. Supreme Court’s ruling upholding the constitutionality of the heart of Arizona’s anti-illegal immigration law: SB 1070. It’s worth noting that 68 law enforcement entities in 24 states have functioning 287(g) agreements with the federal government. But it appears the only agreements eliminated today were those in Arizona, the state that happens to be on the front lines of America’s fight against illegal immigration. We are on our own, apparently. [emphasis mine]To feel the full flavour of her ire, read the whole thing.