The Supreme Court’s 5-3 decision in the United States v. Arizona, eviscerating the controversial Arizona immigration law SB 1070, is the most important immigration decision in decades. It is an unmitigated, overwhelming win for the United States.
It marks the end of a period of a decade or so where some states and localities tried to drive out unauthorized migrants using their own laws, imposing burdens that the federal law did not, or enforcing federal requirements contrary to the views of federal law enforcement authorities. The Court, in an opinion written by Justice Kennedy and, importantly, joined by Chief Justice Roberts, made clear that the federal government has primary responsibility for immigration. The three dissenting justices each wrote for themselves only; that they were unable to persuade even each other suggests that their objections were idiosyncratic rather than being based on some solid legal principle.
The Court struck down Section 3 of SB 1070, which made it an Arizona crime to fail to comply with federal immigration registration laws, Section 5 which criminalized working without federal authorization, and Section 6, which authorized state officers to make civil immigration arrests. The decision represents a heads-I-win, tails-you-lose situation for supporters of state immigration legislation.
On the one hand, states can’t legislate in areas where the federal government has acted, because local penalties would be inconsistent or at least additional. On the other hand, states also cannot legislate in areas of immigration where the federal government has not acted, because the states cannot override the federal government’s choice not to impose penalties or restrictions. That the Court found both federal action and federal inaction to preclude state legislation suggests that there is a very tough road ahead for any state immigration crimes.
The Court’s invalidation of Section 6 means that states cannot even make arrests for civil immigration violations on their own — decisions about how to carry out federal law are for the president and the Executive Branch. In so ruling, the Court repudiated a legal theory, the “inherent authority” position, championed for years by immigration restrictionists in the legal academy and in the policy community. For example, Kris Kobach, now secretary of state of Kansas, was a leader among those arguing in law review articles, op-eds, in the Department of Justice, and in city councils and state legislatures that state and local law enforcement officers had “inherent authority” to carry out federal immigration law by making arrests. This decision puts that claim to rest.
The Court did reject a facial challenge to Section 2(B) of the law, which requires state and local officers to ask about immigration status in a stop or arrest where there is reasonable suspicion that the individual is undocumented. But the Court left open the possibility that 2(B) could be applied unconstitutionally. In particular, the Court suggested that holding an individual after the initial, non-immigration justification for the stop ended might violate the Fourth Amendment. If so, then Section 2(B) means little other than that the police can ask questions, a principle that exists with or without SB 1070.
What’s next is that the SB 1070 copycats in other states will also be invalidated. Also, other state immigration laws will be challenged under this exacting approach, such as the laws prohibiting transporting undocumented people which are on the books in a number of states. And the implementation of Section 2(B) will be under a microscope, as critics of the law look for cases where the police hold people solely for immigration investigation, or rely on race as a basis for suspicion.
One winner from all of this is clearly Chief Justice Roberts, who by joining this decision positions himself as a statesman. With his support for federal national security claims, had he gone the other way, he would have found it hard to avoid charges of inconsistency.