Congress, Constitutional Law, Supreme Court

SUPREME COURT DECLARES MUCH OF ARIZONA LAW PREEMPTED

As we anticipated, the United States Supreme Court has reversed and upheld the Ninth Circuit in part in the immigration case. Most parts — Sections 3, 5, and 6 — are preempted. In this case, Justice Kagan recused herself and the opinion is written by Justice Kennedy. Both sides can claim some victory, though the Administration can claim the invalidation of most of the law. Yet, the most controversial provision remains unpreempted.

Only the provisions requiring a check of papers is found not to be preempted. The Court is fractured on the aspects with multiple opinions with Justices Scalia, Thomas, and Alito each filing opinions. However, Kennedy carries the day. He simply rejects the claims of cooperation in enforcing sections like section 6:

In defense of §6, Arizona notes a federal statute permit­ ting state officers to “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” 8 U. S. C. §1357(g)(10)(B). 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 alien for being removable absent any request, approval, or other instruction from the Federal Government.

The majority expresses sympathy with Arizona but ultimately little support:

The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thought­ ful, rational civic discourse. Arizona may have under­ standable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law.

Yet, most of the attention of the public was focused on the “show me your papers” part of the law that requires state and local police to perform roadside immigration checks of people they’ve stopped or detained. This is the “reasonable suspicion” and will continue — though the Court cautions that it must be used with restraint.

The invalidation of the other provisions does not bode well for states and cities in passing a host of laws involving illegal immigrants. Ruled preempted are is (1) Section 3 making it a state crime to be here illegally; (2) Section 5(C) making it a state crime for undocumented immigrants to apply for a job or working in the state and (3) Section 6 allowing state law enforcement officials to arrest without a warrant any individual otherwise lawfully in the country when they have probable cause to believe the individual has committed a deportable offense.

Here is the opinion: 11-182b5e1

68 thoughts on “SUPREME COURT DECLARES MUCH OF ARIZONA LAW PREEMPTED”

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  4. Abby Jensen @Arizona_Abby writes:

    “Calling sec. 2(B) of AZ’s #SB1070 the “show me your papers” law is no longer justified after today’s SCOTUS decision. With the provisions making it a crime to fail to carry immigration “papers” or to work without legal documentation now thrown out by SCOTUS, police *can’t* stop someone merely to investigate their immigration status, i.e., to ask them to “show me your papers.” Also, only drivers, not passengers, pedestrians or any one else, are required by Arizona law to produce ID when stopped by police. In other words, no one is required to “show their papers” unless they’re driving a car, and then the only requirement is to show their driver’s license or provide other evidence of their name, address, etc.

    Also, the constitution only allows police to stop & detain someone if they have reasonable suspicion the person has committed a crime. After today, that no longer includes the former crimes of being in Arizona without proper immigration documentation. So, Arizona citizens can only be stopped if police have reason to believe they committed some other crime or traffic violation; they *can’t* be stopped just to ask for their “papers.” Once they are stopped, police can’t detain them to investigate their immigration status for any longer than it takes to investigate the reason for the stop. Once that investigation is complete, the police must release the person or, if they have probable cause, arrest them.

    Finally, everyone who is stopped by the police in Arizona should know that they have no duty to cooperate with the police or answer their questions (unless they were stopped while driving, in which case they must provide their license or other ID). However, it *is* a crime to lie to the police or hinder an investigation (other than by refusing to answer questions). So don’t lie or interfere with the police, just exercise your right to remain silent (which you have whether the police tell you about it or not). Finally, keep asking the police if you can leave; once they say you’re free to go, take the police at their word & leave & refuse to answer any further questions. Too many people end up convicting themselves by answering questions they are now required to answer.”

    I feel much better now, so, is she right? Does it stop the ‘papers please’?

  5. OTOTOT

    Today it rained, two times, so hard that it sounded like standing on the tarmac and listening to a jet take off. Haven’t seen equal since the tropics. Weather bureau says rainiest summer (40 days so far) since 100 years. No let up in sight. King and queen slumming the fabodas in Brazil, her native land (50%). Hope it rains on them.

    According to agro sources, Stockholm is not a good farming zone due to lack of Spring/Summer rains. Ha!

  7. Another “lots of states vs. the federales” case was decided today.

    In Coalition for Responsible Reg v. EPA various states sued the EPA over regulations concerning carbon dioxide and other green house gases:

    We begin with a brief primer on greenhouse gases. As their name suggests, when released into the atmosphere, these gases act “like the ceiling of a greenhouse, trapping solar energy and retarding the escape of reflected heat.” Massachusetts v. EPA, 549 U.S. at 505. A wide variety of modern human activities result in greenhouse gas emissions; cars, power plants, and industrial sites all release significant amounts of these heat-trapping gases. In recent decades “[a] well-documented rise in global temperatures has coincided with a significant increase in the concentration of [greenhouse gases] in the atmosphere.” Id. at 504-05. Many scientists believe that mankind’s greenhouse gas emissions are driving this climate change. These scientists predict that global climate change will cause a host of deleterious consequences, including drought, increasingly severe weather events, and rising sea levels.

    It was in the District of Columbia Federal Court of Appeals, before Sentelle, Rogers, and Tatel, JJ.

  8. “Sound like Arizona to you? Imagine Arizona having he right to refuse entry into it’s territory of the Prime Minister of Canada. How about refusing the right of citizens from neighboring states from buying lottery tickets in Arizona.”

    Q: What if the person had agricultural products, could Arizona then deny entry?

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