Not crim­i­nals, says the Supreme Court

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.

Will Sher­iff Joe Arpaio test the Supremes?

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?