S.B. 1070’s Day in Court

The Arizona law wins some and loses some.

By Heather Mac Donald
June 26, 2012

The Supreme Court has upheld the provision of Arizona’s S.B. 1070 that the Obama administration and the illegal-alien lobby most feared: Section 2, which reaffirmed the existing power of Arizona’s local police to inquire into someone’s immigration status if the officer has reason to believe that the person is in the country illegally. In upholding Section 2, the Court has vindicated the power of judicial review and of reason itself. The lower courts’ efforts to invalidate the patently constitutional provision became progressively more laughable as the case rode up the appeal circuit, culminating in the administration’s own tortured verbiage before the Supreme Court. Even the most liberal justices could not accept the contortions of plain meaning that the solicitor general and two Ninth Circuit judges (opposed by a powerful dissent from Ninth Circuit judge Carlos Bea) inflicted on congressional law in their desperate attempt to overturn the Arizona provision.

The administration hated Section 2 because it would throw into sharp relief its de facto amnesty for illegal aliens. Section 2 raised the specter of Arizona traffic cops, say, regularly being told that federal immigration authorities have no interest in detaining an unlicensed illegal alien who has just run a red light or is driving under the influence. However, now that President Obama has issued his own executive amnesty for over 1 million illegals, the administration should not be troubled at the prospect of being shown in yet another forum to be indifferent to immigration enforcement. But it continues to fiercely oppose Section 2 because it turns out that merely asking an illegal alien about his status has a deterrent effect that interferes with the open-borders agenda.

The Court also rightly rejected the lower courts’ premature granting of a preliminary injunction in a facial challenge against Section 2. The Court argued that the section needs to play out in practice to see if its enforcement raises any constitutional problems. Memo to the ACLU: Drop your racial-profiling suit against the section; you’re not going to get past this ruling.

The majority took official note of the harms done to Arizona by illegal immigration, citing Center for Immigration Studies research on the disproportionate rate of felonies committed by illegals in Maricopa County.

I am frankly flabbergasted, however, that the majority, joined by the otherwise dissenting Justice Alito, invalidated Section 3, which makes it a state misdemeanor to violate a federal law requiring legal aliens to carry their registration papers with them. The precedent relied on by the Court concerned a much more complicated state registration scheme that clearly added new requirements to the federal one. Unfortunately, the drafters of Arizona’s Section 3 appear to have needlessly given a pretext for invalidation by changing the federal penalties in the most trivial of ways: not including probation as a penalty and not allowing for pardons. These details of Section 3 were not relied on by the lower courts and have been given prominence by the SCOTUS majority as a bootstrap supplement to its rigid and overly broad reading of preemption doctrine.

A more interesting and plausible objection to Section 3 would arise only once the law was put into practice. If Arizona decided to fine or jail someone under Section 3 whom the feds wanted to ignore, it would be in conflict with executive-branch enforcement priorities. Finding a constitutional conflict in such a situation would require raising executive discretionary decisions about (non)enforcement of the law to the status of congressional statutes and executive regulations under preemption doctrine — an important issue that the majority ducks (and that Justice Alito claims must be resolved against the federal government’s preemption claim). Since the Court has overturned Section 3 on a facial challenge, however, we will not soon have a ruling on that question.

In light of the majority’s rigid reading of preemption doctrine with regards to Section 3, it is not surprising that the Court also invalidated Section 5, which criminalized work by an illegal, and Section 6, which allowed the warrantless arrests of illegals for deportable offenses. Unfortunately, the demise of those sections does not bode well for the southern states whose immigration-enforcement laws went farther than Arizona’s in several respects.

Where are we left in terms of jurisprudence? At first blush, it is hard to find a coherent doctrine at play here. The Court previously upheld an Arizona law imposing additional penalties on employers who repeatedly and knowingly hire illegal aliens. In theory, the Court could reconcile that decision with its invalidation of the S.B. 1070 penalty against illegal workers, but a determined jurist could just as easily argue that Arizona’s employer law should be invalid as well under today’s reasoning.

The Scalia dissent is the only opinion to acknowledge the political context of the Court’s decision.
The justice uses the Obama DREAM Act to presciently discredit what is being reported as the administration’s vindictive decision to suspend its 287(g) agreements with Arizona. (Those 287(g) agreements authorize local police officers to act as immigration agents in determining an alien’s status.) Department of Homeland Security secretary Janet Napolitano did officially whine on Monday about the burden that Section 2 will put on her allegedly straightened agency, an argument that the administration already unsuccessfully pressed to invalidate Section 2. Scalia points out that DHS has just voluntarily saddled itself with an enormous additional administrative load in inviting over 1 million illegal aliens to apply for amnesty; the department’s complaint that it cannot afford to work with Arizona in identifying and responding to illegal aliens within its border is therefore specious.

Scalia’s dissent is also the most breathtakingly sweeping in its assertion of a historic and inherent state authority to police state borders, regardless of what the feds do or do not do, a position that has only been implicit in the defenses of S.B. 1070 up to now. It is a must read, one that raises the question for S.B. 1070 supporters whether their position ineluctably leads as well to Scalia’s radical federalism.

As for the politics, we are back to square one. Obama is calling — surprise! — for “comprehensive immigration reform.” And Romney is calling for a “national immigration strategy,” whatever that means. At least Romney, after an hour or so of dithering about the opinion, has affirmed what he calls the “duty and the right” of states to “secure our borders and preserve the rule of law” — a covert defense of S.B. 1070. Until Romney spells out his intentions regarding federal immigration enforcement, however, it is not yet possible to know how a vote for Romney will alleviate the country’s problems with illegal immigration.

After the oral argument in Arizona v. U.S., open-borders advocates asserted that S.B. 1070 was irrelevant, since the rate of growth in the illegal population had slowed to a bare trickle. The policy of enforcement by attrition, which S.B. 1070 adopted, was no longer needed, the advocates argued. That claim is dead wrong. One reason why growth in the illegal population has slowed is the mere possibility of state enforcement. Law enforcement works, even if it is only threatened. That means that every state that cares about reducing the costs of illegal immigration should now adopt its own counterpart to S.B. 1070’s Section 2.

Heather Mac Donald is a John M. Olin fellow at the Manhattan Institute and co-author of The Immigration Solution.