This morning, the Supreme Court struck down key portions of Arizona’s controversial immigration law, SB 1070. The split decision marked the journey's end for the Department of Justice's federal challenge to the state law.
Writing for the 5-3 majority (Justice Elana Kagan recused herself and Justices Alito, Scalia, and Thomas concurred in part and dissented in part), Justice Anthony Kennedy recognized that SB 1070's sections 3, 5(C), and 6 are preempted by federal law:
"The [federal 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.”
The decision stuck down SB 1070's provisions that would have made it a state crime for illegal immigrants to fail to carry identifying documents or seek employment. The justices did uphold a critical and contentious part of the Arizona law, the provision that allows state police to stop, question, and briefly detain immigrants if state officers have a reasonable suspicion the immigrants are illegally in the U.S. However, the Court's allowance is limited. Taking the teeth out of the provision, state law enforcement must check with federal immigration agents before taking suspects into custody.
As expected, the decision centered on the federal preemption doctrine of our Constitution's Article VI Supremacy Clause. The Clause specifically establishes that federal laws — the Constitution, treaties, and laws made pursuant to the Constitution — are the "supreme law of the land."
Dispensing with the bone-dry legalese and the maddening complexity of jurisprudence, this means that where Congress has unambiguously legislated or where Congress has acted under its authorized Article I powers, resultant federal laws take primacy over state constitutions and state laws. This is true both when a state law conflicts with a federal law and even if a state law follows federal schemes. In effect, a state can legislate only up to the floor — though some legal scholars say ceiling — established by federal law.
Largely, the federal Immigration and Naturalization Acts of 1952 and 1965 dictate the U.S.’ immigration policy. Though infamously complex and procedurally mired in red tape, the Acts have undergone little modification outside of post-9/11 restructurings. Under federal law, immigration violations are non-criminal infractions, with investigations, custodial detentions, and deportations handled by the Immigration and Customs Enforcement under the Department of Homeland Security. In the reformative lull, without successful or broad attempts at the reconstruction of our immigration system, politicians and states have taken responsive measures.
On June 15, President Obama announced a contextually cognizant and merit-based policy directive through the DHS that stands permit some 800,000 young, undocumented immigrants to stay in the United States. The announcement had a peculiar controversial and confrontational effect as the political football of immigration became the central strategy in several partisan playbooks.
Though not an executive order — which would have had the full force of law under the president's Article II powers or under statutory authority from Congress, and would have preempted state laws — the directive marked a nuanced and permissible shift in policy for the DHS. While, objectively, the directive immediately burdens federal law enforcement agencies, it was silent on the repercussions for state law enforcement. With this silence, the directive landed squarely in fray of the federal versus state dilemma embodied by Arizona v. U.S. — leaving it without a determinable conclusion.
During April 25th's oral argument, the question before the Court was whether the INAs preempted Arizona's cooperative law enforcement efforts and so, the four-part SB 1070. On behalf of Arizona, former Solicitor and Attorney General, Paul Clement, argued that the state law "borrowed the federal standard as its own," even though states do "not need to cite federal authorization for their enforcement efforts, and [the DoJ, in seeking to preempt Arizona's] duly enacted state law must point to some peremptory federal provision."
Against the Arizona law, current Solicitor General Donald Verrilli argued that the "Constitution vests exclusive authority over immigration matters with federal government." Consequently, the Arizona law — even where it furthered federal schemes — crossed the boundaries of federalism and muddied the waters of the relationship between federal and state legislation. With today's decision, the justices agreed with the DoJ's position.
Since oral argument, immigration policy has captured the spotlight in such a way that illuminates the imbroglio between federal and state immigration policies, social attitudes, and everyday realities.
Polls have indicated that while the Obama administration has tenaciously addressed illegal immigration, a majority of Americans still view illegal immigration as both a social and political problem. Simultaneously, political parties have shown varying degrees of recognition and support for addressing the injustices facing undocumented youth who have been educated in the U.S. or have served in our Armed Forces. In contrast, several red states — Georgia, Utah, Indiana, and Alabama — have recently passed heavy-handed laws against illegal immigration that have racially discriminatory undertones and have negatively affected state GDPs and local communities.
Today's opinion comes at a critical juncture for the Court. The institution has been hit with the recent CBS/New York Times poll that shows public favorability of the Court at a 25 year low of 44% and that 75% of Americans believe the Justices are guided by their political views. Significant decisions still loom — including the Affordable Care Act and its individual mandate, and international human rights — as the constitutionality of state measures involving university affirmative action, voting rights, and gay marriage rap at the Court's bronze doors.
When President Bush appointed Chief Justice Roberts in 2005, he expressed a desire to run a less polarized Court — one that would rise above political lines, divisive ideologies, and, ultimately, avoid 5-4 decisions. Yet, compositionally, the Roberts' Court has been regarded as the most politically conservative since the Lochner era of the early 1900's and, under Roberts, several significant cases have been decided by 5-4 and 5-3 margins.
Many have considered the Roberts' Court the realization of conservative political push back that formed against the Warren and Burger Courts' liberal leanings between 1953-1986 and percolated in the Rehnquist Court after 1986. In conjunction with today's volatile political climate, many, wisely, have paid close attention to Justice Kennedy, analyzing his swing vote tendencies and contextually determinable conservative or progressive alignments.
Today's decision is a victory for the Obama administration, and will likely invigorate immigration activists, many of whom denounced the Arizona law. It also serves as warning for Georgia, Utah, Indiana, Alabama, and similar-minded legislatures against treading too heavily, and discriminatorily, into the federal purview of immigration policy. Given the popularity of the Obama administration's June 15 immigration announcement, it seems the Court has found the public pulse.