Tuesday, June 26, 2012

SCOTUS to Arizona: Stay in your lane


ON MONDAY the Supreme Court dragged the Arizona Territory, kicking and screaming, back into the United States of America. With Arizona et al. v United States, a straight-up smackdown of much of the state’s restrictive, almost Orwellian anti-illegal immigration law, the Supremes, 5-3 (with Associate Justice Elena Kagan abstaining), reasserted the primacy of the federal government on matters of immigration.

The Sunshine State’s bid to create what would have amounted to its own foreign policy was rebuffed by the court’s statement on the federal government’s “broad, undoubted power over the subject of immigration and the status of aliens.”

Rep. Chuck Schumer said in a statement: “This is as strong a repudiation of the Arizona law as one could expect given that the law has not been implemented yet.”

Three of the law’s wobbliest pillars — Sections 3, 5(C), and 6 — were struck down by the court Monday as violations of the Supremacy Clause of the U.S. Constitution, the clause that abrogates unto the federal government powers of immigration policy, border control and the power to pre-empt state law.

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Item by item, then:

Section 3, making it a misdemeanor for an immigrant not to carry resident documentation: “makes failure to comply with federal alien­registration requirements a state misdemeanor. … Permitting the State to impose its own penalties for the federal offenses here would conflict with the careful framework Congress adopted.

“The United States contends that this state enforcement mechanism intrudes on the field of alien registration...”

Section 5 (c), allowing state police to arrest without a warrant in some situations: “enacts a state criminal prohibition where no federal counterpart exists” and “stands as an obstacle to the federal regulatory system.”



Section 6, making it a crime to apply for a job without federal work authorization: “attempts to provide state officers even greater authority to arrest aliens on the basis of possible removability than Congress has given to trained federal immigration officers. ... This would allow the State to achieve its own immigration policy.”

“By authorizing state and local officers to make warrantless arrests of certain aliens suspected of being removable, [Section 6] too creates an obstacle to federal law. As a general rule, it is not a crime for a removable alien to remain in the United States.”

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THE SUPREMES, however, upheld Section 2 (b), the provision requiring law enforcement to conduct immigration status checks during law enforcement stops if there is reasonable suspicion that individual is in the country illegally. Constitutional until proven otherwise.

“If the law only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision would likely survive preemption—at least absent some showing that it has other consequences that are adverse to federal law and its objectives.”

But Associate Justice Anthony Kennedy, writing for the majority, specified that state police can’t arrest people for extended periods for being sin papeles, without immigration documents; and that any cases alleging racial profiling would be allowed to move through the courts, if such cases occur in the future — a certainty as sure as the sunrise.

“This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect,” the court ruled.

“Arizona may have understandable frustrations with the problems caused by illegal immigration … but the State may not pursue policies that undermine federal law.”

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Justice Kennedy, one of the high court’s more supple wordsmiths, distilled it well: “It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States.”

In a statement, President Obama may have done the boildown even better: “A patchwork of state laws is not a solution to our broken immigration system — it’s part of the problem.”



Which made you wonder what Jan Brewer was smoking. The vitriolic Republican Arizona governor went before the cameras and, in a breathtaking act of reality denial, characterized the high court’s ruling as "a victory for the people of Arizona and for America."

Other conservatives weren’t so disposed, having conniption fits at various way stations of the mediasphere. Talk-radio Doberman and former recreational pharmaceutical enthusiast Rush Limbaugh jumped in the game. “All Arizona did was write a law that mirrors the federal law that Obama was not enforcing," he said. “And the court told them today they can’t do that. It’s disheartening.”

Andrew Napolitano on Fox News said flat-out that the SCOTUS ruling ripped out “the heart and soul” of the Arizona law.

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SOME DEMOCRATS, including Arizona Rep. Raul Grijalva and Illinois Rep. Luis Gutierrez, are dismayed that the ruling didn’t go further. “[I]f your name is something like Gutierrez or Chung or Obama, watch out," said Rep. Gutierrez, to CNN.com. "The express goal of the authors of Arizona's SB 1070 is to make life miserable for immigrants so that they will leave, and a key tool in that effort was upheld by the court."

But in a real sense, Section 2 (b) of SB 1070 conveys no clear-cut victory to Gov. Brewer, no matter what she says, and may be less of the impactful tool Gutierrez suggests. One reason why has less or nothing to do with any leeway or latitude the remaining intact part of the law has in imposing racial or ethnic profiling, or anything close enough to it to be actionable.

One reason it’s no victory for Brewer is that some of the most vehement opponents of SB 1070 have been the police chiefs and police officers that Brewer needs to enforce the law in the first place.

The Arizona Association of Chiefs of Police opposed SB 1070 in 2010, saying that “[t]he provisions of the bill remain problematic and will negatively affect the ability of law enforcement agencies across the state to fulfill their many responsibilities in a timely manner.” Tucson Police Chief Roberto Villasenor, and Pima County Sheriff Clarence Dupnik were two of the earliest opponents of the law as far back as 2010.



OTHERS IN law enforcement — notably many of the rank-and-file police officers who are the primary interface between the public and the machinery of the law — support SB 1070. But it’s the very fact of law enforcement being of two minds on this issue that’s fundamentally problematic from a standpoint of applying the law on the Arizona streets, of making the law stick.

And Arizona can’t count on the federal government to assist the state in the overstepping of its constitutional boundaries. Peter Spiro, a Temple University law professor who specializes in immigration law, told TIME magazine that if federal agents refused to pick up immigrants, (remember Kennedy’s words: “it is not a crime for a removable alien to remain in the United States”), Arizona has no way to force the feds to do it. And if Arizona officers did it, they’d have to let the person go unless that person were suspected of a crime that required incarceration.

In that way, Spiro said, the law’s symbolic. The questioning requirement, he said, "is useful to the extent that it allows states to give notice of hostilities to undocumented immigrants. It allows for a formal expression of the state's hostilities toward undocumented immigrants."

Fine. Just as long as that expression of hostility doesn’t trump the federal government’s expression of hostility.

The Supreme Court has effectively left the state of Arizona with an immigration policy that’s a stool with one leg where yesterday there were four. The balancing act that Arizona is about to do will be a limited-engagement performance. It lasts until a racial profiling charge takes center stage.

With Monday’s ruling, as much portentous as momentous, the highest court in the land may well be telegraphing a knockout punch, but that’s not a problem. That doesn’t matter ... not when the other guy in the ring can’t get out of the way. By law.

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