New York Times
June 25, 2012
Parts of Arizona Law, Justices Allow Its Centerpiece
The Supreme Court on Monday delivered a split decision
on Arizonas tough 2010 immigration law, upholding its
most hotly debated provision but blocking others on the grounds
that they interfered with the federal governments role
in setting immigration policy.
court unanimously sustained the laws centerpiece, the
one critics have called its show me your papers
provision, though they left the door open to further challenges.
The provision requires state law enforcement officials to determine
the immigration status of anyone they stop or arrest if they
have reason to suspect that the individual might be in the country
justices parted ways on three other provisions, with the majority
rejecting measures that would have subjected illegal immigrants
to criminal penalties for activities like seeking work.
ruling is likely to set the ground rules for the immigration
debate, with supporters of the Arizona law pushing for show
me your papers provisions in more states and opponents
trying to overturn criminal sanctions for illegal immigrants.
for the majority, Justice Anthony M. Kennedy said, Arizona
may have understandable frustrations with the problems caused
by illegal immigration while that process continues, but the
state may not pursue policies that undermine federal law.
Antonin Scalia summarized his dissent from the bench, a rare
move that indicated his deep disagreement. Rarer still, he criticized
a policy that was not before the court: President Obamas
recent announcement that his administration would not deport
many illegal immigrants who came to the United States as children.
Scalias point was a narrow one that the states
should have the right to make immigration policy if the federal
government is not enforcing its own policies but it continued
a charged back and forth between the conservative justices and
Mr. Obama. In his 2010 State of the Union address, Mr. Obama
criticized the courts Citizens United campaign finance
ruling, which the court reiterated in a separate ruling on Monday.
court also announced that it was extending its term until Thursday,
signaling that it would issue its much-anticipated ruling on
Mr. Obamas health care law then.
Mr. Obama and Mitt Romney, the presumptive Republican presidential
nominee, quickly responded to the immigration ruling. Mr. Romney
traveling, by coincidence, in Arizona said in
a brief statement that states had the right and the duty to
secure their borders.
Obama emphasized his concern that the remaining provision could
lead to racial profiling, an issue that the court may yet consider
in a future case. No American should ever live under a
cloud of suspicion just because of what they look like,
Mr. Obama said in a statement, adding that he was pleased
about the parts that were struck down.
her own statement, Gov. Jan Brewer of Arizona, a Republican,
said she welcomed the decision to uphold what she called the
heart of the law. The decision, she said, was a victory
for the rule of law and for the inherent right and
responsibility of states to defend their citizens.
the ruling was a partial rebuke to state officials who had argued
that they were entitled to supplement federal efforts to address
Obama administration argued that federal immigration law trumped
or pre-empted, in legal jargon the states
efforts. Last year, the United States Court of Appeals for the
Ninth Circuit, in San Francisco, blocked the four provisions
on those grounds, including the one the Supreme Court upheld.
its challenge, the administration did not argue that it violated
equal-protection principles. At the Supreme Court argument in
April, Solicitor General Donald B. Verrilli Jr. acknowledged
that the federal case was not based on racial or ethnic profiling.
the majority opinion, Justice Kennedy wrote that the ruling
did not foreclose other constitutional challenges to the
law as interpreted and applied after it goes into effect.
Attorney General Eric H. Holder Jr. said on Monday that the
federal government would continue to vigorously enforce
federal prohibitions against racial and ethnic discrimination.
other states have enacted tough measures to stem illegal immigration,
more or less patterned after the Arizona law: Alabama, Georgia,
Indiana, South Carolina and Utah. But most states avoided creating
new crimes for immigration violations, as Arizona did in two
provisions that were struck down.
courts have stayed the carrying out of parts of those laws,
and they will now revisit those decisions.
upholding the requirement that the police ask to see peoples
papers, the court emphasized that state law enforcement officials
already possessed the discretion to ask about immigration status.
The Arizona law merely makes that inquiry mandatory if the police
have reason to suspect a person is an illegal immigrant.
a concurring opinion, Justice Samuel A. Alito Jr. called the
administrations attack on the provision quite remarkable.
United States suggests, he wrote, that a state law
may be pre-empted, not because it conflicts with a federal statute
or regulation, but because it is inconsistent with a federal
agencys current enforcement priorities.
Kennedy added that the state law contained safeguards, including
ones instructing officials not to consider race or national
origin unless already permitted by law.
restricting the sweep of the majority opinion, Justice Kennedy
wrote that detaining individuals solely to verify their
immigration status would raise constitutional concerns.
The decision left open, he said, whether reasonable suspicion
of illegal entry or other immigration crime would be a legitimate
basis for prolonging a detention, or whether this too would
be pre-empted by federal law.
Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg,
Stephen G. Breyer and Sonia Sotomayor joined Justice Kennedys
majority opinion. Justice Elena Kagan disqualified herself from
the case, Arizona v. United States, No. 11-182, presumably because
she had worked on it as the solicitor general.
the case ended in a 4-to-4 tie, the appeals courts ruling
blocking all four aspects of the Arizona law would have stood.
justices dissented in part, each writing separately and only
for himself. Justices Scalia and Clarence Thomas said they would
have sustained all three of the blocked provisions. Justice
Alito would have sustained two of them while overturning one
that makes it a crime under state law for immigrants to fail
to register with the federal government.
two other provisions blocked by the majority were one making
it a crime for illegal immigrants to work or to try find work
and another allowing the police to arrest people without warrants
if they have probable cause to believe they have done things
that would make them deportable under federal law.
who have followed the work of the court for decades said they
could not recall an instance similar to Justice Scalias
commentary on a political dispute outside the record of the
case under consideration.
this case was argued and while it was under consideration,
Justice Scalia said in his written dissent, the secretary
of homeland security announced a program exempting from immigration
enforcement some 1.4 million illegal immigrants. This
month, the Obama administration said it would let younger immigrants
the administration estimates the number at 800,000
who came to the United States as children avoid deportation
and receive working papers as long as they are not over the
age of 30 and have clean criminal records, among other conditions.
president said at a news conference that the new program is
the right thing to do in light of Congresss
failure to pass the administrations proposed revision
of the Immigration Act, Justice Scalia went on. Perhaps
it is, though Arizona may not think so. But to say, as the court
does, that Arizona contradicts federal law by enforcing applications
of the Immigration Act that the president declines to enforce
boggles the mind.
added that Arizona and other states should not be left helpless
before the evil effects of illegal immigration.
Kennedy responded that federal law makes a single sovereign
responsible for maintaining a comprehensive and unified system
to keep track of aliens within the nations borders.
national government has significant power to regulate immigration,
he wrote. The sound exercise of national power over immigration
depends on the nations meeting its responsibility to base
its laws on a political will informed by searching, thoughtful,
rational civic discourse.
H. Cushman Jr. contributed reporting