Parts Of Immigration Law Blocked, But Core Remains

Jun 25, 2012
Originally published on June 26, 2012 4:27 pm
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From NPR News, this is ALL THINGS CONSIDERED. I'm Audie Cornish.


And I'm Melissa Block. The Supreme Court had its say today on Arizona's immigration enforcement law. The court struck down key provisions, but at least for now, it upheld one of the most controversial parts of the law. It allows state and local law enforcement to check the immigration status of anyone who is arrested. The court upheld that provision with a warning to Arizona not to go too far. NPR's legal affairs correspondent Nina Totenberg explains the ruling.

NINA TOTENBERG, BYLINE: In enacting SB 1070, Arizona's stated goal was to make the state a tough place to live for illegal immigrants. Today, by a five-to-three vote, the Supreme Court struck down three important provisions of the law but upheld what some called the central provision, the so-called show-me-your-papers section. Struck down were provisions that made it a state crime for illegal immigrants to seek or engage in work or to fail to carry documents proving they are in the country legally.

Also struck down was the provision that authorized state and local law enforcement officers to arrest anyone based solely on the suspicion that the individual is in the country illegally. All these provisions, said the court, conflict with the federal immigration law passed in 1986. For instance, the court observed, Congress debated whether to make it a crime for an illegal immigrant to seek work and decided against it, putting the onus on employers and imposing civil penalties only on workers.

At the same time, however, court did uphold the so-called show-me-your-papers provision, which requires state and local law enforcement officers upon reasonable suspicion to check the immigration status of anyone stopped for any reason, no matter how minor. Writing for the court majority, Justice Anthony Kennedy said that, on its face, there's nothing wrong with allowing state law enforcement officers to do a quick immigration check with federal immigration authorities, and the law, if read that way, does not unconstitutionally conflict with federal law.

But in a clear warning shot across the state's bow, the court suggested the law cannot be used to target racial or ethnic minorities, and it can't be used to detain people for an unreasonable period of time. The court said it would wait to see how the state enforces the law. Arizona Governor Jan Brewer portrayed the decision as a win for the state.

GOVERNOR JAN BREWER: Arizona is prepared to move forward to enforce this law that we have fought so hard to defend.

TOTENBERG: But others saw the decision as a far more mixed bag. Kevin Appleby is the director of migration policy for the Conference of Catholic Bishops.

KEVIN APPLEBY: Overall, if you look at the decision, it's a strong affirmation of the federal government's role in regulating immigration. The justices struck down three of the four provisions, and on three of them said this is not your purview. This is ours. This is the federal government's.

TOTENBERG: Yale law professor and immigration law expert Lucas Guttentag.

LUCAS GUTTENTAG: I think it's a very significant rejection of the central underpinning of Arizona's law. Arizona's fundamental claim was that the states are allowed to enact their own immigration crimes, their own immigration penalties and their own immigration enforcement speed(ph). And I think all of those arguments have been rejected by the Supreme Court.

TOTENBERG: Paul Clement, who represented the state in the Supreme Court, conceded that today's ruling can be viewed as a glass half full or half empty, but he said that the decision allows the state to move ahead with a system of immigration checks it views as central to the law.

PAUL CLEMENT: One of the things that this law does is make it routine for, as part of the stop, if it doesn't elongate the stop, to verify somebody's status or identification. And I think that's the central protection of the law, and I think that's what's going to go into effect now for the first time.

TOTENBERG: Just how far the state can go in implementing that policy remains unclear. In a passage with implications for the Obama DREAM Act deferral order, the court said that even when someone is in the country illegally, it is the federal officials who must decide whether it makes sense to detain that individual or to seek deportation. And the court said discretion in enforcement of immigration law turns in part on human concerns and the allocation of resources. Illegal immigrants trying to support their families, Justice Kennedy noted, pose less danger than alien smugglers or aliens who commit serious crimes. And he observed that individual cases turn on many factors, including whether a person was brought here by his parents as a child or whether he served honorably in the military.

Overall, the court seemed to say, that it is the federal government that has primary power over immigration, and despite Arizona's understandable frustration with the problems caused by illegal immigration along its border, the state is not free to pursue policies that undermine federal law.

Joining Kennedy in the majority were Chief Justice Roberts and Justices Ginsburg, Breyer and Sotomayor. Justice Kagan was recused because she was involved in a case when she served in the Obama administration prior to her appointment to the court. Justice Antonin Scalia, in an oral dissent from the bench this morning, blasted the court majority and the Obama administration, singling out the president's most recent immigration policy announcement as proof positive of the federal government's unwillingness to enforce the law.

If the original colonies had known that they would be at the mercy of the federal government on immigration policy, he said, they would never have joined the Union. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.