The oral arguments earlier this year on the SB-1070, the infamous Arizona immigration law, made it difficult to read how the Court was going to rule on most of its provisions, although the Court seemed on balance more sympathetic to Arizona's position. Given how things looked after that, today's decision in Arizona v. United States must be considered a pleasant surprise. Most of the key provisions of the Arizona law were struck down, and the provision that was not could still be subject to future challenges depending on how it is applied. Rather than the usual 5-4 split, the case was decided 5-3 (with Justice Kagan recusing herself); surprisingly, Chief Justice Roberts joined Justice Kennedy and the Court's four Democratic appointees but did not write. Roberts apparently wanted there to be a five-person majority rather than having most of the Arizona law upheld because of a tie that left the lower court decision undisturbed.
The majority, through Kennedy, decided the case based on a straightforward underlying principle: "[t]he Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens" and "the federal power to determine immigration policy is well settled." Because of the Supremacy Clause in Article VI of the Constitution, conflicts between state and federal law are resolved in favor of the latter. Based on this, any state law that attempts to regulate in a sphere governed by federal law is inherently suspect. Most of Arizona's law could not survive this scrutiny. Following these pre-emption principles, the majority struck down three provisions of the Arizona law: the imposition of a state penalty for failing to "complete or carry an alien registration document" in violation of federal law; a provision making it a state crime for an undocumented alien to seek employment; and a provision allowing state law enforcement officials to arrest anyone without a warrant if they have "probable cause" to believe that a person has "committed any public offense that makes [him] removable from the United States." The illegality of each of these sections, as Kennedy argues, is quite clear. All interfere directly with a legislative scheme established by Congress in a way that the Supremacy Clause does not permit.
The majority did, as most people expected after oral argument, refuse to strike down the controversial Section 2(B) of the Arizona statue-commonly known as "papers, please"-which required state law enforcement officials to make a "reasonable attempt . . . to determine the immigration status" of people being stopped, detained or arrested if there was a "reasonable suspicion" the individual is in the country illegally. The majority did not see the conflict with federal law in this case to be as direct as with the other provisions. Even here, however, Kennedy's argument was very narrow. Section 2(B) will still be subject to future challenges if it is applied in a way that demonstrably conflicts with the objectives of federal law or in a racially discriminatory manner. Arizona will still face the scrutiny of federal courts as it applies the "check your papers" provisions in practice.
All three of the dissenters wrote separately. Justice Alito agreed with the court about the constitutionality of Section 2(B) and about the unconstitutionality of the provision applying additional state penalties for individuals who violate federal immigration law, but believed the two remaining sections were constitutional, based on a reading of federal law that, for reasons discussed by Kennedy, I think is unreasonably narrow. Justice Thomas argued that every provision was constitutional, based on his long-standing belief that only a direct contradiction between the language in federal and state statutes requires the latter to be preempted, and that a conflict between state law and the "purposes and objectives" of Congress is not enough to preempt state law. I think Thomas's vision of federal power is too narrow, but he has at least applied the principle with some consistency and not just where it reflects Republican values.
The most remarkable opinion in the case, however, is Justice Scalia's solo dissent. Like Thomas, he believes that the Arizona law should be upheld in its entirety. Unlike Thomas, he took not taken a narrow view of what is required for state law to be preempted. In keeping with his clownish performance at oral argument, Scalia makes no attempt to conceal the political values that motivated this contradiction with his past jurisprudence. As he did at oral argument, he begins by asserting that "[a]s a sovereign, Arizona has the inherent power to exclude persons from its territory." This conflation of a nation-state and a constituent part of a nation state is utterly inappropriate, and the qualification that Scalia goes on to add-"subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress"-completely swallows the first statement.
Given such constitutional requirements as the federal right to travel, American states are simply not "sovereign," and any reasoning based on this principle has no chance of withstanding scrutiny. Scalia's dissent continues in this vein, defending Arizona's law by making policy arguments against Congress and the Obama administration. "Must Arizona's ability to protect its borders yield to the reality that Congress has provided inadequate funding for federal enforcement-or, even worse, to the Executive's unwise targeting of that funding?" asks Scalia. Actually, yes-our constitutional framework does not allow Arizona to premept federal law if it doesn't like the way it's being exercised, and Arizona does not in fact have the inherent right to exclude people that the federal government does. And things get even worse as he tries to expand on his theory that the Supremacy Clause is inapplicable if Congress exercises its authority in a way Antonin Scalia doesn't like:
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. 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. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so.
Amusingly, Scalia has just released a co-authored book criticizing many of his colleagues for not adhering to what he considers the only acceptable consideration that can go into legal reasoning-the text of the relevant document as it was construed at the time of its ratification. I had no idea that the original meaning of the Constitution and federal statutes could be best discerned by listening to The Michael Savage Show.
