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


  1. GeneH would be welcome here to dissect and put labels on Scalia’s bad logic, assuming it is bad.

    But let me attempt:

    “We” think that the Constitution (?) says that the matter could not be demonstrably solved at state level, so we revert the right to define to the national level, ie Congress.

    Scali thinks that because the ruling did not expressly take away the power from the states, that the power is then still theirs to exercise.

    Did I do it?

  2. Very good, Mespo. The states of the U.S.A. are not sovereign. They are not nations. The U.S.A. is a sovereign nation.
    A lot of folks hate to hear that, but citizens of individual states are U.S.A. citizens, first. They have U.S. Constitutional rights that states may not abrogate.
    We already discussed this in the 1860s, and again, in the 1960s (Civil Rights movement). Discussion about state sovereignty is over. Only dinosaurs like Scalia are still going on about it.

  3. The last guy says that Scalia is getting wacky. Show me your papers Antonio. If you are a WOP then you must go to jail here in AZ until we can clear up your citizenship. You talk funny to us desert guys out here in Tucson. You don sound like New York to me Antonio. Hold your hands out. We’re cuffin ya.

  4. Read this little dittie from the dissent of Justice Scalia:

    As a sovereign, Arizona has the inherent power to ex­
    clude persons from its territory, subject only to those
    limitations expressed in the Constitution or constitution­
    ally imposed by Congress. That power to exclude has long
    been recognized as inherent in sovereignty. Emer de
    Vattel’s seminal 1758 treatise on the Law of Nations
    “The sovereign may forbid the entrance of his territory
    either to foreigners in general, or in particular cases,
    or to certain persons, or for certain particular pur-
    poses, according as he may think it advantageous to
    the state. There is nothing in all this, that does not
    flow from the rights of domain and sovereignty: every
    one is obliged to pay respect to the prohibition; and
    whoever dares violate it, incurs the penalty decreed
    to render it effectual.” The Law of Nations, bk. II,
    ch. VII, §94, p. 309 (B. Kapossy & R. Whatmore eds.
    See also I R. Phillimore, Commentaries upon Internation­
    al Law, pt. III, ch. X, p. 233 (1854) (“It is a received maxim
    of International Law that, the Government of a State may
    prohibit the entrance of strangers into the country”).1
    There is no doubt that “before the adoption of the consti­
    tution of the United States” each State had the author-
    ity to “prevent [itself] from being burdened by an influx of
    persons.” Mayor of New York v. Miln, 11 Pet. 102, 132–
    133 (1837). And the Constitution did not strip the States
    of that authority. To the contrary, two of the Constitu­
    tion’s provisions were designed to enable the States to
    prevent “the intrusion of obnoxious aliens through other
    States.” Letter from James Madison to Edmund Randolph
    (Aug. 27, 1782), in 1 The Writings of James Madison 226
    (1900); accord, The Federalist No. 42, pp. 269–271 (C.
    Rossiter ed. 1961) (J. Madison). The Articles of Confederation had provided that “the free inhabitants of each of
    these States, paupers, vagabonds and fugitives from jus­
    tice excepted, shall be entitled to all privileges and im­
    munities of free citizens in the several States.” Articles of
    Confederation, Art. IV. This meant that an unwelcome
    alien could obtain all the rights of a citizen of one State
    simply by first becoming an inhabitant of another. To
    remedy this, the Constitution’s Privileges and Immunities
    Clause provided that “[t]he Citizens of each State shall be
    entitled to all Privileges and Immunities of Citizens in the
    several States.” Art. IV, §2, cl. 1 (emphasis added). But
    if one State had particularly lax citizenship standards, it
    might still serve as a gateway for the entry of “obnoxious
    aliens” into other States. This problem was solved “by
    authorizing the general government to establish a uniform
    rule of naturalization throughout the United States.” The
    Federalist No. 42, supra, at 271; see Art. I, §8, cl. 4. In
    other words, the naturalization power was given to Con­
    gress not to abrogate States’ power to exclude those they
    did not want, but to vindicate it.

    Now what in the world is he talking about:

    Vattel’s work deal with nation states and international law, not political subdivisions thereof. Scalia must have missed Book 1§4 where a “sovereign” is defined as, “Every nation that governs itself, under what form soever, without dependence on any foreign power, is a Sovereign State, Its rights are naturally the same as those of any other state. Such are the moral persons who live together in a natural society, subject to the law of nations. To give a nation a right to make an immediate figure in this grand society, it is sufficient that it be really sovereign and independent, that is, that it govern itself by its own authority and laws.”

    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.

    Scalia is really getting wacky.

  5. Saturday Night Live skit: The whole nine get off the plane at Tucson
    Airport. The city cops are at the curb watching for immigrants leaving the terminal. They give Thomas the nod. Breyer and Kennedy look ok. Ginsberg gets some questions but the Brooklyn accent gives her a pass. Sotomayer and Scalia are demanded to show papers. They let Kagan go by after a good look over. Sotomayer is put into the Mex catagory and Scalia into the Italian mafia grouping. Finally the cops lament and let them go. One cop is shaking his head saying that the second one, Breyer, looked “extraterrestrial”. “Yeah, there are aliens and then there are aliens.”
    “Yeah, specially when they say they just got off a plane from New York.”

  6. When I lived in Mexico the obvious solutions were two: end the War on Drugs and re-negotiate NAFTA to ‘Fair Trade’.

    The fact that Neo Liberalism has failed spectacularly in Mexico is obvious.

    I’d back both efforts, but we get lawmakers to agree, and I still don’t see many Democratic lawmakers that believe in Fair Trade (most liberal economists still only vaguely lean towards it, even my hero Paul Krugman will endorse a carbon tax, but not a Fair Trade tax) and of course the Republicans mainly are interested only in gutting wages for employers.

    In the meantime, once again, Paul Krugman says we can’t have strong safety nets with open borders.

    Think about that when you consider today’s Supreme Court ruling.

  7. How about we re-negotiate NAFTA to include a living wage and environmental protections? Because the slave labor maquiladoras on our border are what they are fleeing from. They will die if they work there too long, so they risk their lives to cross the border and come here.
    After all, Tyson, et al are tempting them to come work in the USA.

    And it affects the US. The pollution from these slave labor factories is showing up on the beaches in San Diego. Heavy metals from battery factories etc.

    When I lived in Mexico the obvious solutions were two: end the War on Drugs and re-negotiate NAFTA to ‘Fair Trade’.

    The fact that Neo Liberalism has failed spectacularly in Mexico is obvious.

  8. Bron,

    They are here. That’s a fact. We are not keeping them out according to others. And we are wasting money and effort on Border cops needed for schools. So deal with it already.

    Every problem is an opportunity, someone said.
    Either build an Israel border, and bear the shame or do the right thing. The world is not going to change until we legitimize soft drugs—-and
    neither alcohol or nicotine are soft. Both kill.

  9. Messpo,

    Indeed, and it is stupid. Some of my worst enemies are Repugs. Gotcha.
    But true. But summarizing enemies under one flag is not a fault found on only one side.

    I thought this especially true when you got a lot ot flak the other day for your support of the drone program—particularly as some thought you were indiscriminately targeting anybody in Swat valley (yes that is its name). Presence meant terrorist meant target, as I recall you said or were accused of saying.

    So was a bit suspicious that you were now suppressing saying “UNFORTUNATELY the hispanics have been awakened by this……”.

    And whether killing with drones on suspicion based on paid informers (have we heard of them before feeding just the nuclear fuel to start the Iraq war) is well-grounded is another argument for another time.

    Thanks for your succinct reply.
    Pithy, but hardly an argument.

  10. Idealist:

    personally, I am all for people being able to freely go to whatever country they want and engaging in any type of work they are qualified for, the more the better.

    More people working in America means a bigger pie for all to share.

  11. ID:

    It’s hard to write an indictment against a whole people. Ask Edmund Burke. 😀

  12. SwM,

    Scalia’s proclivity to ridicule has long been noted. Underlying all his ridicule and trivializing is some very notable hostility.

    The older he gets, the worse he gets.

  13. Regarding questions (rhetorical, no doubt) about what other than race might be used to determine whether someone is in the country legally, I answered a similar question about the time the bill was passed:

    A person (or 300) is found to have used forged documents to get a job at Ranch Market; a u-haul truck is pulled over for a traffic violation, the driver leaves the scene and there are 67 people riding in the back; people are being held hostage by human smugglers because they haven’t paid their fee to those smugglers.

    All three examples are from news stories at about the time the bill was passed. And, to me, all three situations would raise a reasonable suspicion that the people involved are not here legally.

    Granted, in each case one might want a bit more information (e.g., an admission from 1 of the 67 as to the fact that he was being smuggled into the county, which would cast suspicion on the other 66, or several of the 67 giving conflicting accounts as to why they were in the truck or what they know about the driver).

  14. Messpo,

    I’m always hanging myself up on words and the things they MAY hide.

    You say ultra-right as an enemy of the hispanics.
    Well, that’s awfully generous of you to exclude the rest of the right wing.

    In my mind all the right wing consists of “haves” who don’t intend to share a dime with the hispanics, or any other ones they regard as needies.

    So, the choice is much simpler. Every thing with an R on it is an enemy incarnate.

  15. I mean for crying out loud, they are here, they have been here, and will probably stay here, and import their relatives, etc.

    Let’s get their problem on the table, stabilized, and behind us. Then we can go on mining the border so we can hear the coyotes and badgers and peccaries getting blown up. And the a–holes who run around with camouflage pants and jackets, can dare each other to see how close they dare go near it. All between drinks of hooch.

    Stupidity, thy limits know no bounds.

    Somebody first mentioned the San Jose, and changed it to the San Pedro river. Only spitting distance from wher my army base was/is. AS long as it has pools you won’t die of thirst.

  16. It appears to me that SCOTUS didn’t endorse ethnic profiling in salvaging the “show me your papers” provision. The Court said it didn’t know enough about its implementation to rule on its constitutionality. That’s not a free pass; that’s a cautious test to see if Arizona will exercise good faith in checking immigration status. If it doesn’t, the Court will likely kick it out as well. All the Court has unwittingly done is to energize Latinos against the ultra-rightwing in the next election and that all can’t be bad can it? There’s a reason that all Romney will say is that it’s Obama’s mess.

  17. Shano,

    I’ll buy it right now. Really.
    Go and report and get registered as refugee, get ID card, get right to ER care, food stamps, and limited (?) right to work. And you pay taxes. Citizenship after 7 years. No repatriation requirements.

    All caught at the border will be shot and buried in unhallowed ground with black steel crosses and
    sombreros marking the spots.

  18. idealist, I kept thinking that all undocumented Mexicans in America should just claim amnesty until the end of the War on Drugs.

    When our own government was sending down semi automatic weapons to fuel this war, why should any Mexican leave the US to go into a war zone? Why not give them refugee status?

Comments are closed.