"Four Takeaways From Today’s Arizona Immigration Decision"
This morning, the Supreme Court handed down a 5-3 decision striking down three key provisions of Arizona’s SB 1070 law, and effectively limiting the scope of the law’s “show me your papers” provision requiring law enforcement officers to determine the immigration status of anyone they have “reasonable suspicion” to believe is in the country illegally. Here are four key takeaways from this decision:
1. Arizona Does Not Get To Have Its Own Immigration Policy: For decades the backbone of American immigration law has been an understanding that the United States has one immigration policy set by our national government, not fifty different immigration policies set by fifty different states. Today’s decision leaves this basic framework in place. In the words of Justice Kennedy’s majority opinion, “[i]t is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States.”
2. Arizona Cannot Create New Crimes Targeting Immigrants: SB 1070 criminalizes “willful failure to complete or carry an alien registration document,” it makes it a crime for undocumented immigrants to work or seek work, and it authorizes police to arrest anyone the officer has “probably cause to believe” can be deported. All of these provisions were struck down by the Court. Notably, Justice Kennedy’s opinion acknowledged how forcing immigrants into the shadows can lead to their exploitation: “making criminals out of aliens engaged in unauthorized work—aliens who already face the possibility of employer exploitation because of their removable status—would be inconsistent with federal policy and objectives.”
3. Arizona Cannot Detain People Simply Because They Might Be Undocumented: Although the opinion does not strike down the “show me your papers” provision, it significantly lessens the harm caused by this provision. SB 1070 provides that “[a]ny person who is arrested shall have the person’s immigration status determined before the person is released,” but the Court warns the state not to apply this provision literally if it wants to avoid running headlong into the Constitution:
Detaining individuals solely to verify their immigration status would raise constitutional concerns. And it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision. The program put in place by Congress does not allow state or local officers to adopt this enforcement mechanism.
But §2(B) could be read to avoid these concerns. To take one example, a person might be stopped for jaywalking in Tucson and be unable to produce identification. The first sentence of §2(B) instructs officers to make a “reasonable” attempt to verify his immigration status with ICE if there is reasonable suspicion that his presence in the United States is unlawful. The state courts may conclude that, unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry.
Although the Court technically does not reason a decision on this question, under today’s opinion, prolonging a person’s detention simply to verify their immigration status is almost certainly not allowed.
4. Obama’s DREAM Initiative Is Legal: Finally, as Judd Legum notes, the opinion strongly hints that the Obama Administration’s directive allowing undocumented college students and veterans to remain in the country is lawful. Indeed, on page 17 of the opinion, the Court explicitly lists “a veteran” or a “college student” as two examples of undocumented immigrants who should not experience “unnecessary harassment.”
In the end, the Obama Administration got 85 percent of what it asked for from the Supreme Court today, plus an unexpected lift to its newly announced immigration directive. Three of SB 1070′s four challenged provisions were struck down, and the remaining provision was significantly limited. Moreover, it is possible that a subsequent challenge could invalidate show me your papers for good. The Court leaves open the possibility that future constitutional challenges to this provision could strike it down.