At long last, on Monday, the United States Supreme Court, in a 5-3 vote, issued its opinion regarding Arizona’s controversial immigration enforcement law.  The Court struck down several key sections of Arizona’s tough immigration enforcement statute, “S.B. 1070” (although H.B. 2162 amended S.B. 1070 and was the version enacted, the law is still referred to as S.B. 1070).  However, the Court upheld Section 2(B) which requires state police to check the immigration status of individuals they stop, detain, or arrest if “reasonable suspicion exists” that the person is unlawfully present in the United States.

Justice Kennedy wrote the majority opinion and was joined by Chief Justice Roberts, and Justices Ginsburg, Breyer, and Sotomayor.  Justices Thomas, Alito, and Scalia each filed separate opinions, concurring in part and dissenting in part.  Justice Kagan, who served as Solicitor General during earlier stages of the litigation, was recused from the case.  The Wall Street Journal and CNN had excellent coverage of the Court’s decision.  

The Back Story

Arizona has one of the fastest growing illegal immigrant populations in the United States.  Media coverage of Arizona’s growing illegal population was relentless, the public response was heated, and the debate over immigration reform continued to grow more and more contentious.  In 2010, at the forefront of one of the nation’s most controversial issues, Arizona enacted S.B. 1070 in an effort to deter illegal immigrants from entering and working in the state.  As CNN reported, supporters of the statute were “fed up with illegal immigrants crossing from Mexico— and what they say is the federal government’s inability to stop it.”  The federal government, on the other hand, argued that the statute exceeded Arizona’s authority and claimed the law was preempted by federal immigration policy.

Two of the challenged sections, Sections 3 and 5(C), make an individual’s failure to comply with certain federal immigration laws a state misdemeanor.  The other two challenged sections, Sections 2(B) and 6, increased state and local police officers’ authority to arrest individuals suspected of being in the U.S. illegally.  The District Court granted, and the Ninth Circuit affirmed, a preliminary injunction of all four sections, which prevented S.B.1070 from being enforced while the Supreme Court’s decision was pending.  

The Supreme Court’s Decision

According to the Supreme Court, the federal government’s broad authority to set immigration policy means that three sections of the Statute (Sections 3, 5(C), and 6) could not be enforced:

  • Section 3 – makes failure to carry federal alien-registration documents a state misdemeanor
  • Section 5(C) – makes seeking or engaging in work in the State without work authorization a state misdemeanor
  • Section 6 – authorizing police to arrest without warrant a person that the officer has probable cause to believe has committed any public offense that makes the person removable from the United States

However, the Court unanimously upheld the law’s focal piece – Section 2(B).  Section 2(B), the provision dubbed by its critics as the “show me your papers provision,” requires state and local officers to determine the immigration status of anyone they stop or detain when they have reasonable suspicion that the individual is in the U.S. illegally.  In upholding 2(B), the Court noted the limitations, built into Section 2(B), that effectively narrow police officer discretion.  The Court also mentioned that federal law already encourages the states to share information about potential immigration violations with ICE, and that “Congress has done nothing to suggest it is inappropriate to communicate with ICE.”

Political Response

The response from politicians has been incredibly varied.  President Obama issued a statement on Monday in response to the opinion.  While the President said he was “pleased that the Supreme Court has struck down key provisions” of the law, he expressed concerns about the “practical implications” and civil rights issues of enforcing Section 2(B).  Attorney General Eric Holder echoed President Obama’s concerns, pledging that the “Department of Justice will continue to vigorously enforce federal prohibitions against racial and ethnic discrimination.”  

GOP Presidential Candidate Mitt Romney claimed the decision “underscores the need for a President who will lead on this critical issue and work in a bipartisan fashion to pursue a national immigration strategy.” Jan Brewer, Arizona’s Governor who signed S.B. 1070 into law, said the decision was a “victory for the rule of law,” and the ability of “states to defend their citizens,” but noted the probability of more lawsuits once the law is implemented. 

Janet Napolitano, Secretary of Homeland Security, also weighed in on the Court’s opinion.  In her statement, Napolitano supported the Court’s decision “that state laws cannot dictate the federal government’s immigration enforcement policies or priorities,” but also noted that Section 2(B) will “make DHS’ work more challenging.”  Importantly, she noted that the Court’s opinion will have no effect on DHS’ existing priorities and her June 15th Memoranda on prosecutorial discretion. 

The Future

The implications of Monday’s decision are unclear.  While all sides of the debate seem to believe enforcement of the remaining provision is likely to create more challenges and more litigation, how and when enforcement will begin has not been decided.  Also, several sources are suggesting, and hoping, that the decision will push Congress to enact comprehensive immigration reform to replace the patchwork of state enforcement laws. One thing, however, remains certain: immigration enforcement will continue to be a hotly debated political issue and the focus of media attention well into the foreseeable future. 

I’d like to thank Emilie McNally, Summer Associate, for her contribution to this blog entry.