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”

  1. How would a LEO base his decision if not on appearance? Ant then that is profiling?
    Your papers? One step closer to CCCP. And what papers are accepted in the whole of the USA? Is there a law backing this which ones will do?

  2. bettykath – depends, I’d go with the paper bag rule. Are you a lighter or a darker tone than a grocery bag?

  3. DallysDad, I’m not from AZ and I didn’t know that Obama had deported people in record numbers. Thanks for the info. Sorry if I offended you. Contrary to what you said, I like Hispanics and don’t find them scary. My favorite is Manuela Arbelaez. I suppose I’m a little jealous because of all the red tape and bureaucracy my Canadian wife and I are having to endure, trying to get her into the U.S. legally. I wish she could just come over without obeying the law. However, after dealing with fees, paperwork, lost paperwork, and long wait, I can understand why people come over illegally.

  5. Leaving the “paper’s please” portion of S.B. 1070 will lead to more lawsuits, if racial profiling can be proven, and concomitantly, more monies from local coffers if such lawsuits are successful. Just another “opportunity” for folks to make money off a stupid law.

  6. http://www.nomoredeaths.org/Information/deaths.html

    Deaths on AZ Border since Oct. 1, 2011

    Since October 1, 2011, the remains of 94 migrants have been recovered in Arizona border counties, according to the Coalición de Derechos Humanos.

    In recent years, the annual number of recovered remains has been consistently high, with approximately half recovered in summertime.

    Year Total (Oct.–Sept.) Summer (June–Sept.) Source
    2010–2011 183 90 49% Coalición de Derechos Humanos
    2009–2010 253 123 49% Coalición de Derechos Humanos
    2008–2009 217 112 52% Arizona Daily Star Border Deaths
    2007–2008 186 94 51% Arizona Daily Star Border Deaths
    2006–2007 242 125 52% Arizona Daily Star Border Deaths
    2005–2006 223 111 50% Arizona Daily Star Border Deaths
    2004–2005 282 149 53% Coalición de Derechos Humanos

    When large numbers of people are dying in remote wilderness conditions, the number of bodies recovered gives an indication, but only an indication, of the true loss of life.

    The main source of information about recovered remains is medical examiners’ offices. The Arizona data is compiled by the Coalición de Derechos Humanos. The Arizona Daily Star also maintains a Border Deaths Database, organized by calendar year.

    Both sources report data provided by medical examiners for the four Arizona border counties: Pima County, Santa Cruz County, Yuma County, and Cochise County. The majority of the Arizona deaths occur in Pima County.

    Not all the dead are identified. On trends in the number of unidentified bodies, see this press release from the Coalición de Derechos Humanos.

  8. Well, of all the states, I think it is important for Arizona to have much tighter borders because I am terribly saddened to read every September the count of how many people fathers, mothers, children, and usually over a hundred, died in the desert over the spring and summer.

    I am also upset with the terrible conditions they live in once they get here, with dozens or even a hundred or more found in tiny drophouses with little food, water, or air conditioning. It’s inhumane, unsanitary, and promotes human trafficking.

    http://www.officer.com/news/10277216/more-than-100-found-in-ariz-drop-house

    The car accidents that result trucks and vans overturning on freeways with dozens of people not belted in are horrific.

    And Paul Krugman reminds me that since I want a strong safety net with single payer health care in the United States, I cannot promote open borders.

    http://krugman.blogs.nytimes.com/2010/04/26/the-curious-politics-of-immigration/

    Finally, the illegal migration north is terrible on the environment and will scar the desert and alter vegetation and river flows with discarded pollution for literally hundreds of years. (google illegal immigrants san jose river).

    I understand that many people that do not live here mainly consider concerns like this to be racism when expressed in Arizona, athough the same people would most likely be concerned with human trafficking, environmental degradation, and deaths in their backyards if it happened in their ticky tacky little neighborhoods. These same people while demanding open borders also probably are furious that the Supreme Court looks likely to turn down the individual mandate.

  9. Neil, Obama has record deportations and he is lax? Are you from AZ Neil? I am. Grew up there and go back every spring. Have family there, brothers and sisters there. Over the last few years I have seen a visible decrease in the latino population. As for my brothers and sisters? They are American citizens, born here. It disgusts me that I have to watch the police roll up on them as they are taking my nephews and nieces to the park at the end of the block. Funny thing though, if I take my nephews and nieces to the park the police just go on by. I wonder why? My brothers and sisters, as American Citizens, have the same right as I do to walk to the park. The thing that people who make comments like you seem to forget is that these crazy laws that AZ passes in it’s crazy legislature, have an affect on HUMAN BEINGS. Who somehow are all scary to you because they are not a white middle aged male.

  10. “Does this mean I have to carry my birth certificate if I go to Arizona?”

    Long form only please if you visit Uncle Joe’s territory in Maricopa County.

  11. Does this mean I have to carry my birth certificate if I go to Arizona?

  12. Kind of thought that the law enforcement officers asking for your papers, to see if your legal or not, was infringing on the rights of not providing self incriminating evidence.

  13. “Weird. The “papers please” part of the law was, to me, *clearly* in conflict with the fourth amendment. ”

    It was also the part of the law that many Arizona police chiefs were most against as it seems like a very difficult part of the law for their officers to enforce without racial profiling, and also puts investigations at risk, (The law explicitly says it doesn’t have to be enforced on a case by case basis if it puts investigations at risk, but the overall fear of that section of the law will still put investigations at risk.)

    But I agree, I would’ve thought other portions of the law would be found constitutional sooner that the papers please clause.

  15. This throws Arizona to the wolves essentially. The President has stated that he intends to not enforce immigration law, and now Arizona, a state suffering from an onslaught of illegal immigration, is not allowed to enforce immigration law themselves.

  19. The civil war is over guys.

    Stop burning those books.

    If the decision had been the other way it would have caused confusion and made it much more difficult to have a comprehensive, coordinated solution.

  20. Really, this is a National Sovereignty question, not a state rights question.
    The states abrogated both that responsibility and that power when they joined the national union.

    It was a correct decision in terms of international law.

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