Politics, Business & Culture in the Americas

On SB 1070, Supreme Court Reaffirms Federal Government’s Power to Regulate Immigration

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In a 5-3 decision today, the Supreme Court issued its long awaited opinion on Arizona’s controversial SB 1070 bill. The ruling, with the majority opinion written by Justice Anthony Kennedy (a nominee of former President Ronald Reagan), was a partial victory for the rights of immigrants and for the administration of President Barack Obama which had challenged the constitutionality of four key provisions in the Arizona law.

The Court ruled that federal law preempts three of the provisions being challenged and ruled them unconstitutional. First, it struck down Arizona’s attempt to require the carrying of an alien registration document (Section 3), with Kennedy writing that registration is “a field in which Congress has left no room for States to regulate.”

Another key provision of the Arizona law, Section 5(C), would have made it illegal for undocumented workers to apply for, solicit or perform work. This too was ruled illegal since “the provision upsets the balance struck by the Immigration Reform and Control Act of 1986 (IRCA) and must be preempted as an obstacle to the federal plan of regulation and control.” By invalidating this provision, the Court is essentially saying that states cannot make up their own laws that restrict the employment of undocumented workers since IRCA already sought to do that in 1986.

Finally, in a very welcome decision, the Court struck down Section 6, a provision copied by other states that allows a police officer to “without a warrant… arrest a person if the officer has probable cause to believe . . . [the person] has committed any public offense.” In invalidating this provision, Justice Kennedy wrote that it would have conflicted with the federal immigration removal system and that “it is not a crime for a removable alien to remain present in the United States.”

The decision on Section 6 will hopefully create ripple effects across the country, including states like Alabama where a Mercedes-Benz executive was arrested in November 2011 when he could only produce a German identification card. Under that state’s restrictive immigration bill, HB 56, officers can arrest anyone who does not have a valid U.S. identification.

Still, the Court did uphold the provision of SB 1070 that requires officers to check the papers of anyone they stop, detain or arrest if there is “reasonable suspicion” that the person is in the country without authorization. But while it did uphold Section 2(B), the Court placed limits on its enforcement, thus narrowing the potential scope of its application. Writing for the majority, Kennedy warned that when state courts interpret this section they should not prolong any stop for the purpose of an immigration inquiry. The Court left the door open to challenging this provision in the future, but Kennedy wrote that “ if §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.” Given the kick-the-can approach taken to Section 2(B), it is likely that further challenges will arise when, and if, the very narrow guidelines set by the Court are breached.

For months, Alabama, Georgia, South Carolina and other states have anxiously awaited the Court’s decision to see how it would affect their own attempts to restrict immigration. Today’s decision gives some clear guidance.

With only three judges opposing the decision, the ruling clearly outlines the Court’s conviction that federal law must preempt state law. And in the case where there is no federal law, the ruling notes that immigration policy is a federal issue where the federal government “has broad, undoubted power over the subject of immigration.” While today’s decision will not end the wave of state-level immigration policies, it should give legislators a cause for concern when enacting laws that may flaunt the guidelines put forward by the Court.

We are a nation of immigrants with the vast majority of those immigrants in this country with the authorization to be here. State policies that encourage profiling or seek to limit the rights of many for the purpose of unlawfully clamping down on the few are fundamentally against the very foundations of our country. While it is quite troubling that the “show me your papers” provision was generally upheld, the Supreme Court today warned states against further attempts to create their own immigration policies—especially ones that trump federal law.

*Jason Marczak is a contributing blogger to AQ Online. He is senior editor of Americas Quarterly, managing editor of AQ Online and director of policy at Americas Society and Council of the Americas.


Jason Marczak is deputy director of the Adrienne Arsht Latin America Center at the Atlantic Council. He previously served as senior editor of Americas Quarterly and director of policy at Americas Society and Council of the Americas.

Tags: Arizona, Immigration
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