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The Arizona Decision and What It Means

Today, the United States Supreme Court, in a 5-3 decision (with Justice Kagan recusing herself), mainly gutted Arizona’s SB 1070, the state’s immigration law. Make no mistake, although prevailing on the most publicized aspect of the case, Arizona lost. What is somewhat surprising is the legal rationale used and if you are a conservative proponent of state laws that address the problem of illegal aliens within their borders, this has to be disheartening news.

First, the Court invalidated that section of the law which provided for criminal sanctions for failure to carry documents attesting to the legality of their status in the United States. Secondly, it invalidated that section which penalized aliens who engaged in unauthorized employment within the state. Third, they struck down the potentially warrantless arrest and detention of suspected undocumented aliens. What they did allow is for police to, once arrested, determine the immigration status of individuals. However, at this point the question becomes, “What then?”

Arizona police officials can report these individuals to federal authorities, but federal authorities are free to do absolutely nothing. Conversely, state officials were warned that even this section, although upheld here, could be revisited in the future if the state should indefinitely detain these people. That is, although upheld in furtherance of a federal law, the federal government had final say on the disposition of that person. They could simply say, “Thank you. Now let them go.” Or they could say, “Thank you. We’ve been looking for that guy- he’s in a drug cartel.”

With similar laws on hold in other states, some more strict than this one, it would appear that their chances, given this decision, are doomed. In fact, many viewed the Arizona statute perhaps the most lenient one under challenge. If the states cannot prevail under that set of circumstances, it is likely that Circuit Courts across the country will strike similar or stronger laws in other states.

The decision was written by Justice Kennedy and joined by John Roberts, Ginsburg, Sotomayor and Breyer. Scalia, Thomas and Alito of course agreed with Section 2(b) being upheld, but not with the other aspects being struck down. His argument and that of another concurring/dissenting opinion by Thomas argued the issue from a federalism standpoint. They correctly noted that states are free to make a state crime that which is also a federal crime under their general state policing powers. That line of reasoning would certainly lend some support to Arizona’s requirement that immigrants carry their documents on their person. That, after all, has been federal law since the 1950s. Where the minority gets in a little trouble is the section that penalizes aliens who engage in unauthorized employment in Arizona. While it is true that just last term, this very Court determined that Arizona could revoke the business licenses of businesses that hired undocumented aliens, the thrust of enforcement at the federal level has been against employers, not “employees.” And they would be correct. During the debate over IRCA under Reagan, this issue was brought up and the Congress rejected criminal sanctions (fines) against employees and directed them at employers. Here, it is understandable that they would not grant to states a tool they deny to the federal government.

The decision, as written by Kennedy, simply slammed the door shut on these federalism-guided theories. What it did was frame the issue in terms of national foreign relations. By doing so, they made the issue exceptionally difficult for states to defend immigration laws in the future. Kennedy stated that foreign countries need to be assured of the status of their nationals within our borders and to do so, they need to speak to one voice- the federal government- not 50 individual entities. By framing it in an international relations rationale, they ignored- indeed, rejected- the federalism argument. Obviously, no one would argue that the federal government is uniquely situated and tasked in the Constitution’s Enumerated Powers Clause with conducting foreign relations.

For the “restrictionists” out there- those who believe in strong federal immigration laws or, in their absence states stepping in where the federal government abdicates their duty (a/k/a Obama)- this was a serious blow to efforts in a certain sense. It was a blow in that efforts at the state level now appear to be precluded, especially in light of the “national foreign relations” rationale. Simply, it very hard for states to overcome that rationale and the Supreme Court has placed immigration in the center of the foreign relations realm. However, although the state battlefield may be shut off, there is still immigration reform at the federal level.

In a way, the Court was telling the states that this is a policy decision best left for the federal government. Of course, the reality is that the federal government has done precious little to reform immigration policy which is the reason Arizona acted in the absence of leadership or meaningful enforcement from Washington. It is interesting to note that many of the deportations Obama now takes credit for were initiated during the Bush Administration. It is also interesting to note that the number of illegal immigrants in the US has not dropped because of anything the Obama Administration has done beyond prolonging this recession. But, the negative economic times will not last forever (unless Obama is reelected in November) and jobs will return and the economy will expand and illegal immigrants will again begin streaming across the border. That is an economic fact, not a foreign relations dilemma. Unless real, comprehensive immigration reform is not enacted at the national level, we will repeat these arguments in the future. The status quo will not do. Unilateral Presidential directives will not solve the problem or suffice as a solution. Unfortunately, today the Supreme Court told the states: “Thanks for your help where WE think it is necessary, but stay out of this issue- it is not for you to reform.”

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