Parts of Arizona’s immigration law are likely to be deemed unconstitutional, according to Ken Starr, former United States Court of Appeals judge, Solicitor General under George H. W. Bush and the lead inquisitor against President Clinton during his presidency. Starr and another former solicitor general, Neal Katyal, both agreed on CNN’s State of the Union this Sunday that parts of the “show us your papers” bill could be struck down when the law goes to the Supreme Court in two weeks:
STARR: There are parts of the law, though, that I believe are quite problematic. And in particular, the provision with respect to individuals who are undocumented seeking work. Congress saw fit not to make that a crime. To have employer sanctions, but not employee sanctions, and I feel that’s problematic.
CROWLEY: Do you in general agree with that?
KATYAL: I certainly agree. I think Judge Starr has nailed it on the head when he said those provisions that make certainly things criminal are really likely to go down. I think those are very hard to defend.
Starr is certainly right about what will happen in this case if the Supreme Court decides to follow the law. The Constitution does not permit states to intrude deeply into immigration policy because of immigration’s close connection to foreign policy and national security — both of which are issues that are reserved for the federal government. Unfortunately, after last month’s argument in the Affordable Care Act case, it remains an open question whether the Constitution still applies in the Roberts Court.