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Four takeaways from the Arizona immigration decision

Cross-posted from Think Progress:

By Ian Millhiser

Yesteday, the Supreme Court handed down a 5-3 decision striking down three key provisions of Arizona’s SB 1070 law, and effectively limiting the scope of the law’s “show me your papers” provision requiring law enforcement officers to determine the immigration status of anyone they have “reasonable suspicion” to believe is in the country illegally. Here are four key takeaways from this decision:

1. Arizona Does Not Get To Have Its Own Immigration Policy: For decades the backbone of American immigration law has been an understanding that the United States has one immigration policy set by our national government, not fifty different immigration policies set by fifty different states. Today’s decision leaves this basic framework in place. In the words of Justice Kennedy’s majority opinion, “[i]t is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States.”

2. Arizona Cannot Create New Crimes Targeting Immigrants: SB 1070 criminalizes “willful failure to complete or carry an alien registration document,” it makes it a crime for undocumented immigrants to work or seek work, and it authorizes police to arrest anyone the officer has “probably cause to believe” can be deported. All of these provisions were struck down by the Court. Notably, Justice Kennedy’s opinion acknowledged how forcing immigrants into the shadows can lead to their exploitation: “making criminals out of aliens engaged in unauthorized work—aliens who already face the possibil­ity of employer exploitation because of their removable status—would be inconsistent with federal policy and objectives.”

3. Arizona Cannot Detain People Simply Because They Might Be Undocumented: Although the opinion does not strike down the “show me your papers” provision, it significantly lessens the harm caused by this provision. SB 1070 provides that “[a]ny person who is arrested shall have the person’s immigration status de­termined before the person is released,” but the Court warns the state not to apply this provision literally if it wants to avoid running headlong into the Constitution:

Detaining individuals solely to verify their immi­gration status would raise constitutional concerns. And it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision. The program put in place by Congress does not allow state or local officers to adopt this enforcement mechanism.

But §2(B) could be read to avoid these concerns. To take one example, a person might be stopped for jaywalking in Tucson and be unable to produce identification. The first sentence of §2(B) instructs officers to make a “reasonable” attempt to verify his immigration status with ICE if there is reasonable suspicion that his presence in the United States is unlawful. The state courts may conclude that, unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry.

Although the Court technically does not reason a decision on this question, under today’s opinion, prolonging a person’s detention simply to verify their immigration status is almost certainly not allowed.

4. Obama’s DREAM Initiative Is Legal: Finally, as Judd Legum notes, the opinion strongly hints that the Obama Administration’s directive allowing undocumented college students and veterans to remain in the country is lawful. Indeed, on page 17 of the opinion, the Court explicitly lists “a veteran” or a “college student” as two examples of undocumented immigrants who should not experience “unnecessary harassment.”

In the end, the Obama Administration got 85 percent of what it asked for from the Supreme Court today, plus an unexpected lift to its newly announced immigration directive. Three of SB 1070?s four challenged provisions were struck down, and the remaining provision was significantly limited. Moreover, it is possible that a subsequent challenge could invalidate show me your papers for good. The Court leaves open the possibility that future constitutional challenges to this provision could strike it down.

 

One Comment

  1. Dave Francis

    June 26, 2012 at 6:42 pm

    ILLEGAL ALIENS ARE NOT JUST FROM MEXICO, BUT ARRIVE HERE ON INTERNATIONAL FLIGHTS POSING AS TOURISTS.

    WASHINGTON — The Supreme Court released their opinion Yesterday that the federal government has the sole power to enforce the laws against illegal immigration, striking down three key provisions of Arizona’s first-in-the nation crackdown on illegal aliens squatting there and stealing our children’s education, American family health care and a cornucopia of welfare payments and programs. ONLY THE TEA PARTY CAN SAVE US NOW. THE TEA PARTY IS EVERY WALK OF LIFE, EVERY RACE, & EVERY RELIGION THAT HAVE HAD IT WITH THE TWO POLITICAL PARTIES. ID YOU DON’T WANT A SOCIALIST FUTURE, EVERY AMERICAN WHO HAS NEVER VOTED—SHOULD VOTE. NON-CITIZENS WILL VOTE TO SAVE OBAMA.

    Frustrated, angry with the Republicans and Democrats, then join the TEA PARTY organization. The growing numbers of millions of Americans are joining this party, spreading its wings away from the Republican enclave. Both political parties are corrupt and all incumbents need to be replaced, which is happening now. We can no longer afford to support the rest of the world, or the 20 million plus illegal aliens living in the United States that has brought their poverty with them. HUNDREDS OF BILLIONS OF DOLLARS ARE BEING SIPHONED FROM STATES AND THE TAXPAYERS POCKETS.

    We must back the Mitt Romney, even though he has his issues but prolong the replacement of every single Democrat, Liberal or Republican that is tearing America apart. IT is the Time of the PEOPLE’S PARTY. It is the time for the TEA PARTY, which is complimented by man/women; African, White, Hispanic, Asian and other racial Americans. The TEA PARTY is a wealth of different religions, faiths, gay and every other walk of life. Remember a large Majority who votes for President Obama for a second term, non citizens or American citizens are the ones who spend their day watching TV, selling drugs, living off the rest of us like parasites.

    The exception is the sick and true non-functioning human beings, so spend a minute and understand the growing divide in America. If you are frustrated with feeding the rest of the world, unable to get a decent job, the controversial immigration debate that is a theft of your taxes, the rules and regulations forced on Americans that halt large energy companies from extracting oil, natural gas and coal; that we could not only lower the costs of our transport, but sell residual amounts to friendly foreign countries.

    By replacing President Obama administration, plus replacing the Republicans and Democrats in the Senate and the Ho House of Representative and seating in ‘THE PEOPLE’S Constitutional TEA PARTY, we can win America back Millions more will be encouraged to come here, bringing their poverty, criminals and children stealing their futures. WE ARE LOSING OUR COUNTRY, OUR LIBERTIES AND OUR U.S. CONSTITUTIONAL RIGHTS.

    In Arizona that was the epicenter of the Illegal Immigration invaders, where the courts have declared that every taxpayer through unfunded mandates must pay for public services for every illegal alien who slips by the border guards. If you are a taxpayer then you should investigate the websites of NumbersUSA, Judicial Watch, Federation of Immigration Reform (FAIR) Center for Immigration studies (CIS), THE DARK SIDE OF ILLEGAL IMMIGRATION (Crimes committed by illegal aliens.
    DON’T STICK YOUR HEAD IN THE SAND. JOIN YOUR LOCAL TEA PARTY. FOR AS WE SEE ARIZONA, ALABAMA, GEORGIA, SOUTH CAROLINA OR ANY OTHER STATE BEING HUNTED DOWN, THREATENED AND INTIMIDATED BY A JUSTICE DEPARTMENT AND MARXISTS, SOCIALISTS IN THE OBAMA ADMINISTRATION.

    Don’t forget that illegal aliens and their legal families want to keep Obama in power, so they can keep collecting taxpayer dollars, the $4.2 billion annually that goes to the children of illegal aliens, not even living in the United States. The $2 Billion dollars a month sucked dry in the Sanctuary city of Los Angeles, going to illegal nationals.

    IF YOU HAVE NEVER VOTED BEFORE, REGISTER AND BE READY. REMEMBER, IF YOU THINK ILLEGAL ALIENS OR OTHER NON CITIZENS DO NOT VOTE. THEN THE LAUGH WILL BE ON US ALL, IN NOVEMBER. THE LIBERALS ARE SAYING THE REPUBLICANS ARE TRYING TO ‘SUPPRESS MINORITY VOTING’ BUT THEY ARE NOT SAYING IS THAT ILLEGAL ALIENS ARE VOTING IN EVERY ELECTION, WITH NO TRUE OFFICIAL RESTRICTIONS.

    We need Sheriff Joe Arpio, for a TEA PARTY leader candidate as a Senator or House Representative. We need strong, aggressive people in Congress, especially following Constitutional law.

    CNN Television and the rest of the Liberal channels always show the huge reinforced fences that run along the most populated areas of the Southern border. In truth the rest of hundreds of miles of the border region is nothing but a few strands of rusty barbed wire, which an elephant could slide through. THE LIBERAL PRESS ARE MISLEADING THE PUBLIC ON THE REAL FENCE ON HOW MANY MILES ARE COVERED.

    OUR COUNTRY IS BEING OVERPOPULATED IN THE NAME OF VOTES AND GREED. WE SHOULDN’T FORGET THAT OBAMA’S GOONS OUTSOURCED WEAPONS TO NARCOTERRORISTS TO MEXICO KILLING U.S BORDER AGENT & MEXICAN CITIZENS.

    It is of the paramount importance that we must be imposed at once, so no more foreign invaders are encouraged to break the immigration ‘Rule of Law’. ‘THE LEGAL WORKFORCE ACT’ (E-VERIFY) must be passed and advanced, so illegal aliens can no longer steal jobs from the millions of Americans unemployed. The ‘BIRTHRIGHT CITIZENSHIP ACT (H.R.140) must be compulsory so babies smuggled into America, so that parents cannot take benefit from welfare, once the child become an immediate citizen. Half a million pregnant women enter the United States looking for handouts annually, for their children.

    Let your Senator or Congressman/Women know how you will vote, by giving your name to the politician’s aides and that you want them to sponsor E-Verify and the Birthright Citizenship bills. Citizen voters should phone Congress at the central Switchboard at 202-224-3121. FORCE YOUR CONGRESSMAN/WOMAN TO fulfill their obligation to the oath of office and stop pandering to the businesses that use cheap labor. Use the power of your VOTE to demand they sponsor these to policies or we are destined to become like Europe, overwhelmed by the poverty of other countries.

    NO COPYRIGHT. DELIVER TO YOUR FRIENDS & FAMILY