Winning Progressive

While the Supreme Court on Monday did not issue its long-awaited ruling on health care reform, it issued another very important decision regarding the validity of Arizona’s anti-immigration SB 1070.  That controversial law, passed in 2010, sought to get undocumented immigrants to leave the state of Arizona through a strategy of “attrition through enforcement.”  In particular, the law established state law provisions making it illegal for an undocumented immigrant to reside or work in the state, requiring state and local law enforcement to verify the immigration status of people they had a “reasonable suspicion” were undocumented, and effectively forcing immigrants to have to carry papers to demonstrate their status.

The Obama Administration Department of Justice rightfully challenged the constitutionality of SB 1070 in federal court, largely on the grounds that federal immigration law, and the need for a single, consistent immigration law that applies throughout the US, preempts efforts by states to establish conflicting or inconsistent immigration requirements.  In the case of Arizona v. United States, the Supreme Court on Monday, with one significant and problematic exception, agreed with the Obama Administration’s arguments.

Here are the details:

Confirms Federal Primacy on Immigration: 

At its core, the Arizona decision is important because it reaffirms that immigration is an issue of federal law which preempts efforts by states, such as Arizona, to establish their own immigration laws and policies that conflict or are inconsistent with federal law.  As the Court explained:

The federal power to determine immigration policy is well settled. Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws. Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad. . . . . . The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy with respect to these and other realities.  (slip op. at 3, 4)

Given the primacy of federal law on immigration issues, the Court invalidated three portions of SB 1070 on the grounds that they were inconsistent with, and preempted by, federal law.  First, the Court found that Section 3 of SB 1070, which made it a state misdemeanor to fail to complete or carry alien registration papers, was preempted by federal law, which makes it a crime for an immigrant to willfully fail to register, but not for failing to carry registration papers  (slip op. at 9-11).

Second, the Court struck down Section 5(c) of SB 1070, which made it a state crime, punishable by a $2,500 fine and six months in prison, for an undocumented immigrant to knowingly apply for, solicit, or perform work.  The Court ruled this provision was preempted by the 1986 federal Immigration Reform and Control Act (“IRCA”) which, among other things, makes it illegal for employers to hire or recruit unauthorized workers and imposes various civil and criminal penalties for violations. While IRCA imposes some civil penalties on undocumented immigrants engaged in illegal employment, it primarily focuses enforcement on employers, not undocumented employees, and the Court ruled that a state cannot change that focus.  (slip op. at 12-15).

Third, the Arizona Court found federal preemption of Section 6, which authorized state police to arrest, without a warrant, any person who the officer had probable cause to believe that the person has committed an offense that makes him or her removable.  That provision conflicted with federal law, which authorizes arrest for a deportable offense only upon issuance of a federal warrant, and gives state officials a role in such enforcement only upon an agreement between the federal government and the state about how to enforce such laws. (slip op at 15-19).

Upholds Papers Please Provision, Though Notes Limits:

The downside of the Arizona decision is that the Court rejected a preemption challenge to Section 2(B) of SB 1070, which requires state and local police to make a “reasonable” attempt to determine the immigration status of any person who was stopped, detained, or arrested on some other legitimate basis if the police has a reasonable suspicion that the person is unlawfully present in the US.  This provision, in essence, allows state and local officials to hyper-vigilantly enforce certain laws (such as jaywalking or traffic infractions) in a discriminatory manner as a pretext to demand proof of immigration status from people of certain races or ethnicity.

The Court effectively ruled that it was premature to determine that Section 2(B) is preempted or otherwise invalid because that provision had not yet been interpreted by state courts. The Court did, however, strongly suggest that state courts needed to interpret the provision to prevent police from prolonging a detention simply to verify immigration status.  In addition, the Court implied that Section 2(B) could run into constitutional problems if it was shown that police are enforcing it in ways that target people because they are of a certain race or ethnicity.

Strongly Suggests Legality of Obama’s DREAMers Policy:

The Arizona proceeding did not, of course, involve President Obama’s recent policy regarding DREAMers – young, undocumented immigrants who were brought to the US as children by their parents, have been in the US for at least five years, and are law abiding and willing to attend college or serve in the military.  But portions of the decision suggest that the Court would plainly find the policy legal.

Conservatives have attacked President Obama’s DREAMers policy as an illegal exercise of Executive authority by deciding to not enforce immigration laws against DREAMers.  But as nearly 100 law professors have explained, the policy is a perfectly legal exercise of prosecutorial discretion, which allows a Presidential administration to decide the best ways to spend limited resources.  The Court echoed the validity of such exercise of discretion in the immigration context, explaining that:

Removal is a civil, not criminal, matter. A principal feature of the removal system is the broad discretion exercised by immigration officials.  . . . .   Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the  community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state maybe mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return.   (p. 4)

The Court made a similar point in explaining that allowing a state to have its own immigration laws could lead to “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.”  Such language suggests that the Court would be receptive to an argument that the decision not to pursue deportation against DREAMers is an appropriate exercise of prosecutorial discretion.

What It Means For Other States:

Five other states – Alabama, Georgia, Indiana, South Carolina, and Utah – have passed laws with provisions similar to at least some of the provisions in SB 1070.  The Constitutionality and validity of each of those laws is being challenged by the ACLU and others.  As the ACLU documents in this helpful infographic, portions of these laws have already been struck down by federal district or appellate courts.  The Arizona ruling bodes well for the ACLU getting those lower court rulings upheld during any appeal, and potentially striking down additional portions of those laws.

What Does Romney Think?:

Mitt Romney has been exceedingly vague regarding his views on the Supreme Court’s decision, failing to say whether he agreed with any or all portions of the decision in a statement released by the Romney campaign after the ruling was issued.   Similarly, a Romney campaign spokesperson dodged the question of the candidate’s view on the decision twenty times in an interview yesterday.

But Romney has made his views on this issue known numerous times in the past.  In particular, during the GOP primaries, Romney described SB 1070 as a “model” for the nation, and he selected as a campaign adviser Kris Kobach, the virulently anti-immigrant Attorney General of Kansas who developed the self-deportation (or, as the Court referred to it, “attrition through enforcement”) strategy of getting immigrants to “voluntarily” leave the US by making life difficult for them.  In the past, Romney has specifically noted his approval of the self-deportation strategy.

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While the continued validity of the papers please provision of SB 1070 is troublesome and requires continued judicial and political efforts to get all of SB 1070 reversed, the Obama Administration DOJ won a significant victory on Monday over Arizona’s anti-immigration policies.  Now it is up to all of us to make sure that in 2013 we have a President and Congress that will be able to enact a far more sensible and humane immigration reform policy than that being promoted by Mitt Romney and by conservatives in states such as Arizona.