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.
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.
Yes, it's true, the Court did not strike down Section 2(B) like the others. But it is also true that Justice Kennedy made it clear that the provision would require additional evaluation by state and federal courts to see if it is actually enforced in a way that is constitutionally permissible. In other words, the Court Monday gave Arizona temporary license to try to enforce Section 2(B) in a limited way. Here is how Justice Kennedy wrote it up (I've put in bold some of the conditions he placed upon state officials):
The nature and timing of this case counsel caution in evaluating the validity of §2(B). The Federal Government has brought suit against a sovereign State to challenge the provision even before the law has gone into effect. There is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2(B) will be construed in a way that creates a conflict with federal law.
As a result, the United States cannot prevail in its current challenge. See Huron Portland Cement Co. v. Detroit, 362 U. S. 440, 446 (1960) ("To hold otherwise would be to ignore the teaching of this Court's decisions which enjoin seeking out conflicts between state and federal regulation where none clearly exists"). This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect. (some citations omitted).
Now, Arizona officials and other supporters of SB 1070 can spin this part of the ruling as a victory. But it's hardly a ringing endorsement of Section 2(B). In fact, Justice Kennedy expressed several concerns about the enforcement of the provision, concerns which by the nature of this ruling became important guidance for state officials as they go forward. He wrote:
However the law is interpreted, if Section 2(B) only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive preemption -- at least absent some showing that it has other consequences that are adverse to federal law and its objectives.
In other words, we have not heard the last of Section 2 of Arizona's SB 1070. It will now be enforced, hopefully in the limited way contemplated by the Court's majority, and it will also likely be challenged in both state and federal court. It's easy to see a scenario where the Supreme Court is again asked to look West to see how state officials are implementing the instructions given to them by the justices. And it's easy to see Justice Kennedy, if he is still on the Court at that time, again leading his colleagues in coming up with an answer.
As I mentioned, there were three separate dissents from the Court's conservatives. Justice Antonin Scalia wrote that he would have endorsed all four of Arizona's challenged provisions because the state, like all states, has "sovereign" powers to "exclude from the sovereign's territory people who have no right to be there." Whatever power Congress and the Constitution gave to federal officials to coordinate immigration, Justice Scalia added, there is "no federal law prohibiting the State's sovereign power to exclude" illegal immigrants. Accordingly, here's how Justice Scalia framed the case:
What this case comes down to, then, is whether the Arizona law conflicts with federal immigration law -- whether it excludes those whom federal law would admit, or admits those whom federal law would exclude. It does not purport to do so. It applies only to aliens who neither possess a privilege to be present under federal law nor have been removed pursuant to the Federal Government's inherent authority.
Section 2(B)? To Justice Scalia, the conditions and restraints imposed by the Court's majority were needless. Section 6? Justice Scalia ridiculed the majority's reasoning and had little but scorn for federal officials. He wrote:
The Government complains that state officials might not heed "federal priorities." Indeed they might not, particularly if those priorities include willful blindness or deliberate inattention to the presence of removable aliens in Arizona. The State's whole complaint -- the reason this law was passed and this case has arisen -- is that the citizens of Arizona believe federal priorities are too lax. The State has the sovereign power to protect its borders more rigorously if it wishes, absent any valid federal prohibition. The Executive's policy choice of lax federal enforcement does not constitute such a prohibition.
Section 3? Justice Scalia went back to his main thrust -- that Arizona's "sovereign" power to determine its own immigration policy should have trumped federal immigration policies and practices. He wrote:
Illegal immigrants who violate §3 violate Arizona law. It is one thing to say that the Supremacy Clause prevents Arizona law from excluding those whom federal law admits. It is quite something else to say that a violation of Arizona law cannot be punished more severely than a violation of federal law. Especially where (as here) the State is defending its own sovereign interests, there is no precedent for such a limitation.
Justice Samuel Alito also wrote a dissent. Of Section 5(c), the provision relating to undocumented workers, he challenged the majority's view that Congress had rejected the idea of punishing employees seeking work. Justice Alito wrote: "The one thing that is clear from the federal scheme is that Congress chose not to impose federal criminal penalties on aliens who seek or obtain unauthorized work. But that does not mean that Congress also chose to preempt state criminal penalties. The inference is plausible, but far from necessary."
There are a few standout portions of Monday's ruling. For example, in his dissent, we see the range of Justice Scalia's anger and frustration -- there are no more simple words for it -- at the current relationship between the states and the federal government. Justice Scalia ended his remarkably blistering work -- an instant Tea Party ode -- with this. "If securing its territory in this fashion is not within the power of Arizona," Justice Scalia wrote, " we should cease referring to it as a sovereign State. I dissent." (Note the commonly used adverb "respectfully" is missing from the last sentence.)
The other thing that strikes me about Arizona v. United States is the low profile the Chief Justice was able to maintain. He left the heavy lifting for Justice Kennedy -- and uttered not a peep of support or protest to his fellow conservatives who were so strident in their defense of Arizona's legislation. This from a justice who in his relatively short time on the bench has been an outspoken advocate of federalism and states rights. Does Monday's silence presage a thunderous ruling on Thursday over the federal health care law? Don't bet against it.
Indeed, it's impossible to read the Arizona ruling without the shadow of the health care case falling across its path. So, for example, when Justice Scalia laments in dissent the "discussion of the dry legalities" of the case that "suppresses the very human realities that gave rise to the suit," it's hard not to think of the hundreds of millions of Americans whose health care, and health care coverage, will be directly affected, one way or another, by Thursday's ruling. There is no doubt in my mind, none, that Monday's dissenters will strike down the Affordable Care Act. The only question now is which of the other Court conservatives, if any, will join them.