Supreme Court upholds key provision of Arizona SB 1070
UPDATED AT 12 p.m. EST
The state of Arizona has the constitutional right to crack down on illegal immigrants, the Supreme Court decided Monday morning, but it cannot preempt federal law.
In a split decision that was unanimous on its key provision, with Justice Anthony Kennedy delivering the majority opinion, the court upheld to a limited extent, a highly controversial statute that allowed Arizona police officers to check the immigration status of anyone stopped or detained for legal reasons, but struck down other portions of the law aimed at discouraging illegal immigration. Justice Elena Kagan recused herself from the case, having defended the government position on the case in her previous role as U.S. solicitor general.
The 2010 statute, the Support our Law Enforcement and Safe Neighborhoods Act, designed to encourage self-deportation among the state’s substantial illegal immigrant population, has been effective: according to local news reports, the number of illegals in Arizona decreased by 110,000 between Jan. 2010 and Jan. 2011. They have also attracted deep opposition from immigrant advocacy groups and have been denounced by President Barack Obama, though recent polling data shows that almost 60 percent of Americans support the laws.
At issue for the court was the Supremacy Clause of the Constitution, which gives Congress preemptive power over state law. The court examined each of four challenged provisions of Arizona’s law individually, to determine whether the state was found to overstep federal regulation. In addition to the stop-and-search provision, these included state penalties for failure to comply with federal alien-registration requirements and for attempting to work in Arizona without a legal work permit; and authorization for state law enforcement officers to arrest, without a warrant, individuals believed to have committed a deportable offense.
Each of these additional regulations were found to be preempted by federal law. Analysis of the stop-and-search provision, however, was more nuanced.
Kennedy noted that there were limits built into the state law that prohibited racial discrimination and mandated careful lawful enforcement. He also said the statute could be read to avoid constitutional concerns regarding undue detention, in that it only required officers to make “reasonable” attempts to determine a detainee’s immigration status.
While Kennedy said the law may be open to other constitutional challenges after it takes effect, he said it did not necessarily conflict with federal law in its current form.
In the opinion, Kennedy acknowledged Arizona’s ongoing struggle to crack down on illegal immigrants, who numbered 360,000 last year, according to Department of Homeland Security Data.
“Statistics alone do not capture the full extent of Arizona’s concerns,” he wrote. “Accounts in the record suggest there is an ‘epidemic of crime, safety risks, serious property damage, and environmental problems’ associated with the influx of illegal immigration across private land near the Mexican border.”
But he said the Constitution did not allow leeway for the state to do everything it could to remedy those concerns.
“Arizona may have understandable frustrations with the problems caused by illegal immigration … but the state may not pursue policies that undermine federal law,” Kennedy wrote in his opinion.
Justices Antonin Scalia, Clarence Thomas and Samuel Alito dissented in part and concurred in part with the decision.
From the bench, Scalia offered an animated opinion, claiming that it “boggles the mind” that states were not allowed to enforce codified federal law. The associate justice also pointed to the Obama administration’s recent decision to stop deporting young illegal immigrants who entered the country as children if they meet certain criteria as an example of Washington’s capricious attitude towards enforcement.
Scalia, one of the court’s most ardent originalists, said he would have upheld the entirety of the Arizona law because he believed the states would not have joined the union without a similar understanding of permission to protect their sovereignty.
“As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that gave rise to the suit,” he read from his lengthy dissent. “Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy … Arizona has moved to protect its sovereignty, not in contradiction of federal law, but in complete alliance with it.”
Thomas wrote to indicate he too believed all parts of the Arizona statute were constitutionally valid, simply because he could see no conflict between them and the federal statute. Alito said he agreed with the court that the alien registration provision of the Arizona statute was preempted, but would have upheld the other three elements of the law.
The Supreme Court decision could not come at a more politically fraught time for the president and the immigration issue. Earlier this month, Obama signed an executive order that would allow some 800,000 young illegal immigrants to avoid deportation, in a move that Charles Krauthammer called a “fundamental rewriting of the law” and that other critics have characterized as amnesty.
Mitt Romney, who is conducting fundraising events in Arizona Monday, has voiced full support for the Arizona law, though he has not addressed the issue of illegal immigration very recently.
David Harsanyi contributed to this report.