Memo to Jan Brewer: You Had a Bad Day Monday

Governor Jan Brewer applauded Monday’s decision in Arizona v. United States for upholding “the heart of S.B. 1070.”


In an opinion by Justice Kennedy, the Court struck down the three provisions that prescribed punishment for the undocumented. It upheld one provision—but made clear that, unless Arizona courts themselves limit the measure, that one is likely to fail an as-applied challenge once it goes into effect.

(The majority consisted of Chief Justice Roberts and Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. Writing partial dissents were Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. Justice Elena Kagan took no part in the consideration of the case.)

Justice Antonin Scalia concluded his dissent—intemperate even by his own talk-radio standards—with a denunciation of the Administration’s “deferred action” program (which was not even remotely before the Court), and of President Obama himself.

Kennedy’s opinion concluded that three of the four challenged provisions would subvert the federal government’s “broad, undoubted power over the subject of immigration and the status of aliens.”  Those are: § 3, which made it a state crime for an undocumented immigrant not to carry federal immigrant-registration documents; § 5(C), which made it a state crime for an undocumented immigrant to work or even seek work; and § 6, which permitted state police to make warrantless arrests of any immigrant if the police officer has probable cause to believe the immigrants has committed a crime that makes him or her “removable” (deportable) under federal law.

In all those cases, the opinion said, Congress has set up a comprehensive system for regulating immigrants, documented and undocumented, in the United States. State punishment of immigrants for not having registration documents goes beyond the punishment Congress set for that offense; a state ban on work by the undocumented deliberately undermines a conscious choice Congress made not to criminalize immigrants who seek work; and permitting warrantless arrests of the allegedly “removable” violates the Constitution by jailing individuals whom the government may have decided, in its discretion, not to deport.

Arizona had argued that all three provisions were simply state-federal cooperation in support of the same goal. Kennedy was skeptical. “There may be some ambiguity as to what constitutes cooperation under the federal law; but no coherent understanding of the term would incorporate the unilateral decision of state officers to arrest an immigrants for being removable absent any request, approval, or other instruction from the Federal Government,” he wrote.

The sole section that survived was § 2(B), the “show me your papers” provision.  This section requires state law enforcement to make “a reasonable attempt” to check the immigration status of anyone they arrest or stop—if there is “reasonable suspicion” that the person is undocumented. It states that such a person’s “status shall be determined before the person is released.”

Under one reading of that provision, a state officer might stop an individual, say, to determine whether he or she was a fleeing suspect. Even if a few questions resolve that issue, the officer would then be required to detain the jaywalker indefinitely pending an immigration check. 

The mere requirement of a check was not preempted, the Court said. But the opinion strongly suggested that the state courts should now read the statute narrowly. If a person isn’t suspected of crime, “it would not be reasonable to prolong the stop for the immigration inquiry.”  Such detentions “would disrupt the federal framework.”  The opinion clearly invites further lawsuits on this issue once 2(C) goes into effect.

The opinion expressed sympathy for both law-abiding undocumented immigrants and legal residents who may be entangled in state dragnets: “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 immigrants smugglers or immigrants who commit a serious crime.” Kennedy also stressed the legitimacy of executive discretion in enforcement: “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.”

By contrast, the principal dissent, theatrically delivered from the bench by Justice Scalia, showed no sympathy for anyone except Arizona authorities. (Justice Thomas wrote separately to say that he would uphold all the sections of the law; Justice Alito wrote that he would have struck only the provision making it a crime not to have registration papers.)

As noted above, the Obama “deferred action” policy was not before the Court. But Scalia, directly quoting Obama’s statement on the policy, portrays the President and the undocumented as partners in crime. “A federal Government that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotect against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?”

On Monday, remarkably enough, the two angriest dissents came from conservatives. (The other was Justice Alito’s dissent from the result in Miller v. Alabama, holding that the states cannot impose mandatory life without parole on juvenile offenders convicted of murder.) Chief Justice Roberts announced that the Term’s final “hand-down” will occur Thursday, when it seems likely that liberal anguish will rend the air. 

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