Razing Arizona: Supreme Court Sides With Feds on Immigration


Between Scalia's frustrated dissent and the chief justice's silence, it's impossible to look at today's ruling without seeing the shadow of the health care case.

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It was left to the Court's lone Westerner, California native Justice Anthony Kennedy, to strike down the core of Arizona's controversial immigration statute, SB 1070, the law that has roiled political waters and spawned copycat legislation all over the country. There is something entirely fitting in that -- no matter which side of the debate you are on -- because Justice Kennedy clearly understands, on both a personal and professional level, what the immigration wars have meant to the Southwestern part of the country.

So it was a good day for the feds. Three of the four contested provisions of Arizona's law were invalidated outright by the Supreme Court as excessive state intrusion upon core federal immigration powers. And the fourth provision, Section 2 of the statute, was left hanging by a thread -- and subject to further judicial review. If the decision in Arizona v. United States wasn't a rout in favor of the Obama Administration -- if it wasn't a political and legal disaster for Arizona Gov. Jan Brewer and her fellow travelers -- it sure was close.

This was the case in which Justice Elena Kagan, the newest justice, had recused herself because of her work as Solicitor General in 2010, the year that SB 1070 was passed. So the final vote in the case was 5-3, with Chief Justice Roberts providing a critical vote in favor of the White House and against conservative supporters of Arizona's law. There were three separate dissents -- from the Court's three die-hard conservatives, two of whom voted to uphold each of the four state provisions.


There always seems to be a yin and a yang to Justice Kennedy's most memorable rulings (which explains why he seems so keen on Hamlet). And Arizona v. United States yields no exception. Making the case for a universal federal immigration policy, for example, Justice Kennedy wrote:

Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation's international relations.

Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state maybe mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation's foreign policy with respect to these and other realities.

But then just a few pages later, making the case for Arizona's justifications for striking out on its own, Justice Kennedy wrote this:

The pervasiveness of federal regulation does not diminish the importance of immigration policy to the States. Arizona bears many of the consequences of unlawful immigration. Hundreds of thousands of deportable aliens are apprehended in Arizona each year. Unauthorized aliens who remain in the State comprise, by one estimate, almost six percent of the population. And in the State's most populous county, these aliens are reported to be responsible for a disproportionate share of serious crime (citations omitted).

Statistics alone do not capture the full extent of Arizona's concerns. Accounts in the record suggest there is an "epidemic of crime, safety risks, serious property damage, and environmental problems" associated with the influx of illegal migration across private land near the Mexican border. Phoenix is a major city ofthe United States, yet signs along an interstate highway 30 miles to the south warn the public to stay away. One reads, "DANGER -- PUBLIC WARNING -- TRAVEL NOT RECOMMENDED / Active Drug and Human Smuggling Area / Visitors May Encounter Armed Criminals and Smuggling Vehicles Traveling at High Rates of Speed." The problems posed to the State by illegal immigration must not be underestimated (citations omitted).


Justice Kennedy first addressed Section 3 of the Arizona law -- a provision that created a new state misdemeanor for the "willful failure to complete or carry an alien registration document" in violation of a federal law. He ruled that the state provision was preempted ("precluded" is a good lay word, by the way, to describe the effect of "preemption") by federal law. "Were Section 3 to come into force," Justice Kennedy wrote, "the State would have the power to bring criminal charges against individuals for violating a federal law even in circumstances where federal officials in charge of the comprehensive scheme determine that prosecution would frustrate federal policies."

Then the Court moved on to Section 5(c) of the Arizona law -- a provision that created a new state misdemeanor for "an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor." Justice Kennedy found this provision preempted by federal law even more clearly than Section 3. Basing his conclusion upon the Immigration Reform and Control Act of 1986, a Reagan era federal statute, Justice Kennedy wrote:

The legislative background of IRCA underscores the fact that Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment. A commission established by Congress to study immigration policy and to make recommendations concluded these penalties would be "unnecessary and unworkable." (citations omitted)

Because Section 5(c) of Arizona's law directly conflicted with that federal judgment, Justice Kennedy wrote, the state law had to give way to the "careful balance" the Congress had struck. (As an aside: don't you think that anxious supporters of the Patient Protection and Affordable Care Act would love to have Justice Kennedy similarly defer to the "careful balance" established by federal lawmakers when they enacted the new federal health care law in March 2010?)

Next, Justice Kennedy moved on to Section 6 of the Arizona law -- a provision that a state officer "without a warrant, may arrest a person if the officer has probable cause to believe... [the person] has committed any public offense that makes [him] removable from the United States." This provision was similarly preempted by Congress, Justice Kennedy wrote, because it purported to give state officials more power and authority over unlawful immigrants than "trained federal immigration officers have." Justice Kennedy wrote:

This state authority could be exercised without any input from the Federal Government about whether an arrest is warranted in a particular case. This would allow the State to achieve its own immigration policy. The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed. This is not the system Congress created. Federal law specifies limited circumstances in which state officers may perform the functions of an immigration officer

Which brings us to Section 2(B) of the Arizona law -- a provision that "requires state officers to make a 'reasonable attempt ... to determine the immigration status' of any person they stop, detain or arrest on some other legitimate basis if 'reasonable suspicion exists that the person is an alien and is unlawfully present in the United States." It is this provision -- and the Court's interpretation of it -- which generated a great deal of confusion early Monday morning between and among news organizations.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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