Immigration Law

Supreme Court Strikes Down Key Provisions of Arizona Immigration Law

WASHINGTON, D.C. - The U.S. Supreme Court on June 25 invalidated three of the four key provisions of the controversial Arizona immigration law, S.B. 1070 (Arizona, et al. v. United States, No. 11-182, U.S. Sup. [enhanced version available to subscribers]). 

In an opinion written by Justice Anthony Kennedy, the court ruled 5-3 that Arizona cannot make it a misdemeanor for immigrants to fail to carry identification that they are in the United States legally; can't arrest someone on the suspicion that they are in the country illegally; and can't make it a crime for undocumented immigrants to apply for, solicit or perform work.  

The court, for now, upheld the section of the law that allows police to check the immigration status of someone they detain if there is "reasonable suspicion" that they are illegally in the United States, but said it is subject to legal challenges. 

"The national government has significant power to regulate immigration," Justice Kennedy wrote in the majority opinion, adding that "Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the state may not pursue policies that undermined federal law." 

Justice Kennedy was joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.  Justices Antonin Scalia, Clarence Thomas and Samuel Alito filed opinions concurring in part and dissenting in part. Justice Elena Kagan, who had represented the Obama administration in its opposition to the law as solicitor general, took no part in the consideration or decision of the case.


Justice Scalia wrote: 

"The United States is an indivisible 'Union of sovereign States.' Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U. S. 92, 104 (1938). Today's opinion, approving virtually all of the Ninth Circuit's injunction against enforcement of the four challenged provisions of Arizona's law, deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign's territory people who have no right to be there. Neither the Constitution itself nor even any law passed by Congress supports this result."

What's It Mean?

Dan Kowalski, editor-in-chief of Bender's Immigration Bulletin and an immigration lawyer at the Fowler Law Firm in Austin, Texas, told CNN that the ruling means states have to "really almost go back to square one and really rethink their approach and how much time and money they want to put into these types of statutes."

"They're going to have to spend a lot of money on lawyers to try to craft something that they think can withstand Supreme Court scrutiny," he said, adding that states also will "have to budget money for further litigation because, no matter what they propose on a state level, it's going to be challenged. That costs a lot of money. So they're going to have to figure out if it's worth it."

Obama, Brewer Reactions

Both President Obama and Arizona Gov. Jan Brewer claimed victory.

Obama said that he was pleased the court struck down key provisions of the law, but expressed concern about the practical impact of the provision that the court allowed to stand.

"What this decision makes unmistakably clear is that Congress must act on comprehensive immigration reform," Obama said in a written statement. "A patchwork of state laws is not a solution to our broken immigration system - it's part of the problem."

Brewer put out a statement calling the decision "a victory for the rule of law."

"It is also a victory for the 10th Amendment and all Americans who believe in the inherent right and responsibility of states to defend their citizens," Brewer said. "After more than two years of legal challenges, the heart of SB 1070 can now be implemented in accordance with the US Constitution." subscribers can access briefs, pleadings and motions in this case.

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