Illegal ≠ Criminal
Yesterday, the Supreme Court issued an opinion in Arizona v. United States, regarding the legality of Arizona’s SB1070 immigration law. The gist of the opinion is twofold. First, immigration law is the jurisdiction of the federal government, not the state governments. Second, the federal government does not consider being in the country illegally to be criminal activity.
The first is hardly a surprise when you think about it. How on earth can we have 51 different sets of immigration laws without returning to the issues that led to replacing the Articles of Confederation? And, in fact, the main justification to which SB1070 proponents kept returning was that the law did nothing in conflict with federal law. In that sense, the Supreme Court held them to that claim.
That’s where the claim’s fallacy became clear. While federal law criminalized the hiring of people residing in the country illegally, it did not criminalize those who attempted to fill those jobs. Nor did it choose to criminalize being in the country illegally. Merely violating a law does not make one a criminal, unless the law explicitly deems it such.
SB1070 criminalized both being in the country illegally [Section 3 of the law] and attempting to gain employment while being in the country illegally [Section 5(c)]. The Court noted that Congress appeared to take great pains to draw that distinction in federal law, and thus it is a violation of the Supremacy Clause for any state to attempt to overturn it.
This is similar to the way the Court yesterday addressed the writ of certiorari petition for American Tradition Partnership v. Montana, which involved a Montana law that attempted to limit corporate contributions to state campaigns. In denying cert, the Court deemed the Montana law a violation of the Citizens United decision, effectively extending that decision from applying merely to federal campaigns, to now applying to all political campaigns of all sorts within the United States. To this Court, the Supremacy Clause reigns supreme.
But the Supremacy clause doesn’t mean that SB1070 is completely invalid. In fact, the Court allowed much of SB1070 to stand. People who are detained by the police (such as at a traffic stop) may be checked for their immigrant status by the police, per Section 2(b) of the law, but may not be arrested if their status cannot be confirmed onsite. The decision made clear that stops must be conducted in compliance with both federal immigration and civil rights laws, meaning that race or national origin may not be used as a criterion for stopping someone. This leaves the door open for further challenges if it is found that officers are routinely pulling people over for “driving while Hispanic”. Arizona law enforcement agencies (I’m looking at you, Joe Arpaio) must take great care in applying the law, then.
Finally, invalidating Section 6, those found to be in the country legally are not permitted to be arrested for probable cause of committing deportable offenses. As with Sections 3 and 5(c), the ultimate arbiter of these sorts of issues is the federal, not state, government.
Because of the civil rights question, I don’t think this is the last we’ll hear about SB1070.
In the end, the Court upheld only the status check provision [Section 2(b)], and struck down the rest. Supporters of the law will want to point to Section 2(b) and claim victory, while opponents of the law will point to the rest and similarly claim victory.
And this leaves SB1070 proponents in an interesting position. Do they consider the weakened “show your papers” portion enough — especially without the teeth of criminalization? (Unsurprisingly, Governor Jan Brewer does.) If so, will they attempt to replicate the law, ALEC-style, in other states? Or do they consider it a defeat, and would then focus their future efforts on goading Congress to criminalize the presence of foreigners in the United States who don’t have proper documentation?
How do you feel about the decision? How do you think Arizona’s law enforcement agencies will apply the law, now that it has been fully decided? And how do you think SB1070 proponents will proceed from here?
- Supreme Court strikes down key elements of SB 1070 (azfamily.com)
- Here’s the Supreme Court’s decision on SB1070, the Arizona immigration law. Most of it was struck down, but not a key, controversial element: (shortformblog.com)
- Top Court Rules on Immigration Law (huffingtonpost.com)
- Court strikes down much of Arizona immigration law (scotusblog.com)
- NEW: Most of SB 1070 struck down (abc15.com)
- Supreme Court Rules on AZ Immigration Law SB 1070 (radio.foxnews.com)
- Supreme Court issues split decision on Arizona immigration law (latimes.com)
- SB 1070 — Section IIB Is Uphold & Three Provisions Struck Down (independentsentinel.com)
- SB 1070: Supreme Court keeps Arizona waiting (azfamily.com)
- Online symposium: Supreme Court (mostly) guts S.B. 1070 (scotusblog.com)
- Online symposium: S.B.1070 rides off into the sunset (scotusblog.com)
- Supreme Court strikes down most of Arizona immigration law, SB1070 (trailblazersblog.dallasnews.com)
- Court Throws Out Part of Arizona’s Immigration Law SB1070 (sandiego6.com)
- Supreme Court: Immigration Reform Needs to Come from Congress (cato-at-liberty.org)
- Brewer: ‘Heart of SB 1070′ upheld (abc15.com)
- S.B. 1070: In Plain English (scotusblog.com)
- Supreme Court Upholds ‘Show Me Your Papers’ in Arizona’s SB 1070 (colorlines.com)
- Legal experts weigh in on SB 1070 ruling (azfamily.com)
- Another Anticlimax for Arizona Immigration Law (newyorker.com)
- Arizona vs US: SB1070 Mostly Rejected By The Supreme Court (techfleece.com)
- Negative Action
- Supreme Court Watch: Salinas v. Texas
- Strange Bedfellows
- Limits on Limited Government
- Supreme Court Watch: Maryland v. King
- Supreme Court Watch: McQuiggin v. Perkins
- Supreme Court Watch: Millbrook v. United States
- Supreme Court Watch: Fisher v. University of Texas
- The Hamdan’s Tale
- Supreme Court Watch: Arizona v. United States