| The Supreme Court today struck down most of the major portions of the Arizona immigration law.
The law was notable for its provision that allowed local law enforcement officials to inquire as to the immigration status of persons they apprehended. This role traditionally was reserved to the federal government and its enforcement arms and not taken up by local or state law enforcement. Advocates of the law argued that states had the authority to deal with immigration problems themselves; opponents of the law argued that Arizona had run afoul of the President's authority over immigration matters and the Supremacy Clause of the Constitution. Opponents of the law further argued that federal law concerning immigration policy and enforcement preempted state action in this arena, invalidating the Arizona law. The preemption arguments carried the day.
As set out in today's Supreme Court opinion in Arizona, et al. v. United States, No. 11-182:
"Section 3 makes failure to comply with federal alien-registration requirements a state misdemeanor; §5(C)makes it a misdemeanor for an unauthorized alien to seek or engage in work in the State; §6 authorizes state and local officers to arrest without a warrant a person "the officer has probable cause to believe . . . has committed any public offense that makes the person remova¬ble from the United States"; and §2(B) requires officers conducting a stop, detention, or arrest to make efforts, in some circumstances, to verify the person's immigration status with the Federal Government."
The Supreme Court struck down three of the four sections - §§3, 5(C), and 6 on the grounds of preemption. It didn't look terribly far either to find the authority to do it - Article I, §8, cl .4 of the United States Constitution - the power to "establish an uniform Rule of Naturalization." Combined with the Supremacy Clause of the Constitution and various statutes passed by Congress concerning immigration, the Supreme Court found no shortage of reasons to strike down S.B. 1070, the Arizona immigration law.
The Court noted that the Supremacy Clause gives Congress the power to preempt state law in three situations: 1) where the statute contains an express preemption provision; 2) where states attempt to regulate in a field that Congress "must be regulated by its exclusive governance;" and 3) where states laws conflict with federal law "including when they stand 'as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'"
The Court held that all three sections were preempted by federal law. As a footnote, the court simply held that the lower federal court erred when it enjoined §2(B) "before the states had an opportunity to construe it and without some showing that §2(B)'s enforcement in fact conflicts with federal immigration law and its objectives." The Court went on to say that §2(B), while not dead yet, is still open to other preemption and constitutional challenges. That would be an invitation for stakeholders to do so. That, combined with the evisceration of the other three sections of the Arizona law, means that while it is not entirely dead, it is on life support.
Does today's ruling permit anyone to telegraph the way the Affordable Care Act is going to come down on Thursday, the expected ruling date? It is difficult to say. On one hand, the opinion shows a preference for federal power in the face of state challenges to that power. Further, today's opinion expressing a preference for the grant of federal power was authored by Justice Anthony Kennedy, the ever-crucial, oft-praised, and oft-maligned swing vote. On the other hand, the health care decision is less about federal vs. state power than it is solely about the power of the federal government to legislate in a given area. Moreover, today's opinion was concerned with the Supremacy Clause rather than the Commerce Clause, which will inform the health care ruling.
The full opinion can be read here
Our last article on the Arizona case, as well as links to the economic effects of immigrants in Texas and around the country from the Pew Center and from the State Comptroller's office can be read here.
The opinion was authored by Justice Kennedy, and joined by Chief Justice Roberts, and Justices Ginsburg, Breyer, and Sotomayor. Justices Scalia, Thomas, and Alito concurred in party and dissented in part.