Supreme Court Declares Much of Arizona Law Preempted

By Jonathan Turley, Jonathan Turley's Blog

25 June 12

s we anticipated, the United States Supreme Court has reversed and upheld the Ninth Circuit in part in the immigration case. Most parts - Section 3, 5, and 6 - are preempted. In this case, Justice Kagan recused herself and the opinion is written by Justice Kennedy. Both sides can claim some victory, though the Administration can claim the invalidation of most of the law. Yet, the most controversial provision remains unpreempted.

Only the provisions requiring a check of papers is found not to be preempted. The Court is fractured on the aspects with multiple opinions with Justices Scalia, Thomas, and Alito each filing opinions. However, Kennedy carries the day. He simply rejects the claims of cooperation in enforcing sections like section 6:

In defense of §6, Arizona notes a federal statute permit ting state officers to "cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States." 8 U. S. C. §1357(g)(10)(B). There may be some ambiguity as to what constitutes cooperation under the federal law; but no coherent understanding of the term would incorporate the unilateral decision of state officers to arrest an alien for being removable absent any request, approval, or other instruction from the Federal Government.

The majority expresses sympathy with Arizona but ultimately little support:

The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation's meeting its responsibility to base its laws on a political will informed by searching, thought ful, rational civic discourse. Arizona may have under standable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law.

Yet, most of the attention of the public was focused on the "show me your papers" part of the law that requires state and local police to perform roadside immigration checks of people they've stopped or detained. This is the "reasonable suspicion" and will continue - though the Court cautions that it must be used with restraint.

The invalidation of the other provisions does not bode well for states and cities in passing a host of laws involving illegal immigrants. Ruled preempted are is (1) Section 3 making it a state crime to be here illegally; (2) Section 5(C) making it a state crime for undocumented immigrants to apply for a job or working in the state and (3) Section 6 allowing state law enforcement officials to arrest without a warrant any individual otherwise lawfully in the country when they have probable cause to believe the individual has committed a deportable offense.