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Repeal SB 1070
In a 5-3 decision this morning, the Supreme Court of the United States largely rebuffed Arizona Gov. Jan Brewer's efforts to craft her own immigration policy, declaring unconstitutional multiple key provisions of SB 1070 as violating federal supremacy in this arena. This was a facial challenge to the law—as in, "there's no possible way you can apply this constitutionally"—and as such the Court did leave standing the "show your papers" provision for the time being, albeit with strong suggestions as to how it must be applied to keep it constitutional.

Justice Kennedy wrote the opinion of the Court, which included the chief justice (!) and the Court's three liberals; Justice Kagan had recused herself because of prior involvement in the case. Because of Kagan's recusal, a 4-4 tie would have left standing the lower court decision striking down SB 1070 in its entirety; compromise was needed to produce today's majority.

(I recapped the oral argument here.)

(Continue reading below the fold)

As the Court explains, "The Supremacy Clause provides a clear rule that federal law 'shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding,'" and that instruction guides the Court today. "The States are precluded," the Court continues, "from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance."

So as to Section 3, which created a state law crime for being unlawfully present in the United States and failing to register with the federal government, Justice Kennedy writes:

Permitting the State to impose its own penalties for the federal offenses here would conflict with the careful framework Congress adopted. Were §3 to come into force, the State would have the power to bring criminal charges against individuals for violating a federal law even in circumstances where federal officials in charge of the comprehensive scheme determine that prosecution would frustrate federal policies.
Similarly, as to Section 5(C), which created a state law crime for seeking work, or working, when not authorized to do so, the Court rejected SB1070's attempt to contradict federal law:
Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment. A commission established by Congress to study immigration policy and to make recommendations concluded these penalties would be “unnecessary and unworkable.”...

Although §5(C) attempts to achieve one of the same goals as federal law—the deterrence of unlawful employment—it involves a conflict in the method of enforcement. The Court has recognized that a “[c]onflict in technique can be fully as disruptive to the system Congress enacted as conflict in overt policy.” The correct instruction to draw from the text, structure, and history of IRCA is that Congress decided it would be inappropriate to impose criminal penalties on aliens who seek or engage in unauthorized employment. It follows that a state law to the contrary is an obstacle to the regulatory system Congress chose.

Section 6, which authorizes warrantless arrest of non-citizens believed to be removable, fared no better:
Section 6 attempts to provide state officers even greater authority to arrest aliens on the basis of possible removability than Congress has given to trained federal immi- gration officers. Under state law, officers who believe an alien is removable by reason of some “public offense” would have the power to conduct an arrest on that basis regardless of whether a federal warrant has issued or the alien is likely to escape. This state authority could be exercised without any input from the Federal Government about whether an arrest is warranted in a particular case. This would allow the State to achieve its own immigration policy. The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed.

This is not the system Congress created. Federal law specifies limited circumstances in which state officers may perform the functions of an immigration officer. ... By authorizing state officers to decide whether an alien should be detained for being removable, §6 violates the principle that the removal process is entrusted to the discretion of the Federal Government. A decision on removability requires a determination whether it is appropriate to allow a foreign national to continue living in the United States. Decisions of this nature touch on foreign relations and must be made with one voice.

Which leaves Section 2(B), the "show your papers" provision, and as to that the Court says, essentially, Arizona could enforce this constitutionally, but was clear as to the limits on how:
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. Detaining individuals solely to verify their immigration status would raise constitutional concerns. And it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision. The program put in place by Congress does not 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 there is 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 immigration inquiry....

To take another example, a person might be held pending release on a charge of driving under the influence of alcohol. 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 a status 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. There is no need in this case to address whether reasonable suspicion of illegal entry or another immigration crime would be a legitimate basis for prolonging a detention, or whether this too would be preempted by federal law....

The nature and timing of this case counsel caution in evaluating the validity of §2(B). The Federal Government has brought suit against a sovereign State to challenge the provision even before the law has gone into effect. 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.

And since it's Justice Kennedy, how about a big finish, full of puffery about how important it is?
Immigration policy shapes the destiny of the Nation. On May 24, 2012, at one of this Nation’s most distinguished museums of history, a dozen immigrants stood before the tattered flag that inspired Francis Scott Key to write the National Anthem. There they took the oath to become American citizens. These naturalization cere- monies bring together men and women of different origins who now share a common destiny. They swear a common oath to renounce fidelity to foreign princes, to defend the Constitution, and to bear arms on behalf of the country when required by law. The history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here.

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 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.

Each of the three dissenting Justices wrote separately. Justice Scalia would have upheld SB 1070 in its entirety:
Today’s opinion, approving virtually all of the Ninth Circuit’s injunction against enforcement of the four challenged provisions of Arizona’s law, deprives States of what most would consider the defining characteristic 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....

The Constitution gives all those on our shores the protections of the Bill of Rights—but just as those rights are not expanded for foreign nationals because of their countries’ views (some countries, for example, have recently discovered the death penalty to be barbaric), neither are the fundamental sovereign powers of the States abridged to accommodate foreign countries’ views. Even in its international relations, the Federal Government must live with the inconvenient fact that it is a Union of independent States, who have their own sovereign powers. This is not the first time it has found that a nuisance and a bother in the conduct of foreign policy. Four years ago, for example, the Government importuned us to interfere with thoroughly constitutional state judicial procedures in the criminal trial of foreign nationals because the international community, and even an opinion of the International Court of Justice, disapproved them. See Medellín v. Texas, 552 U. S. 491 (2008) . We rejected that request, as we should reject the Executive’s invocation of foreign-affairs considerations here. Though it may upset foreign powers—and even when the Federal Government desperately wants to avoid upsetting foreign powers—the States have the right to protect their borders against foreign nationals, just as they have the right to execute foreign nationals for murder.

Oh. And even though it was nowhere before the Court, Justice Scalia wants you to know he didn't like what the president did last week:
The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conducting as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonenforcement program envisions, will necessarily be deducted from immigration enforcement. 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 fed- eral registration violations,”—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?

Justice Thomas also would have upheld SB 1070, albeit on less robust grounds, merely because nothing in the state law prohibited the federal laws' enforcement. As often is the case, no one agreed with him.

Justice Alito was a bit narrower. He agrees with the majority that 2(B) isn't preempted, but Section 3 is, but joins with Scalia and Thomas in upholding the rest. As to 2(B), he shares the majority's concern (believe it or not):

It has been suggested that §2(B) will cause some persons who are lawfully stopped to be detained in violation of their constitutional rights while a prolonged investigation of their immigration status is undertaken. But nothing on the face of the law suggests that it will be enforced in a way that violates the Fourth Amendment or any other provision of the Constitution. The law instructs officers to make a “reasonable attempt” to investigate immigration status, and this language is best understood as incorporating the Fourth Amendment’s standard of reasonableness. Indeed, the Arizona Legislature has directed that §2(B) “shall be implemented in a manner consistent with federal laws . . . protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.” ...

If properly implemented, §2(B) should not lead to federal constitutional violations, but there is no denying that enforcement of §2(B) will multiply the occasions on which sensitive Fourth Amendment issues will crop up. These civil-liberty concerns, I take it, are at the heart of most objections to §2(B). Close and difficult questions will inevitably arise as to whether an officer had reasonable suspicion to believe that a person who is stopped for some other reason entered the country illegally, and there is a risk that citizens, lawful permanent residents, and others who are lawfully present in the country will be detained. To mitigate this risk, Arizona could issue guidance to officers detailing the circumstances that typically give rise to reasonable suspicion of unlawful presence. And in the spirit of the federal-state cooperation that the United States champions, the Federal Government could share its own guidelines. Arizona could also provide officers with a nonexclusive list containing forms of identification sufficient under §2(B) to dispel any suspicion of unlawful presence. If Arizona accepts licenses from most States as proof of legal status, the problem of roadside detentions will be greatly mitigated.

He would have upheld the employment law provision:
The Court’s holding on §5(C) is inconsistent with De Canas v. Bica, 424 U. S. 351 (1976), which held that employment regulation, even of aliens unlawfully present in the country, is an area of traditional state concern. Because state police powers are implicated here, our precedents require us to presume that federal law does not displace state law unless Congress’ intent to do so is clear and manifest.
Phew. Health care waits for Thursday. SCOTUSblog has the Arizona briefs and case documents.

8:46 AM PT: Greg Sargent:

“The real make or break was the show-me-your-papers provision,” Frank Sharry of America’s Voice tells me. “Basically they upheld it.”

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 alreadyunderway 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.’”

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