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U.S. Supreme Court

Supreme Court Overturns Three Sections of Arizona Immigration Law, Upholds Papers Check

Posted Jun 25, 2012 9:45 AM CDT
By Debra Cassens Weiss

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Updated: The U.S. Supreme Court has struck down three contested sections of an Arizona law designed to crack down on illegal immigrants.

Justice Anthony M. Kennedy wrote the majority opinion (PDF) upholding just one contested section of the law—at least for now. The provision requires state and local police to check the immigration status of people who are stopped, detained or arrested on legitimate grounds, if there is a reasonable suspicion that the person is in the United States illegally.

"At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume [the status-check provision] will be construed in a way that creates a conflict with federal law," Kennedy said. "This opinion does not foreclose other pre-emption and constitutional challenges to the law as interpreted and applied after it goes into effect."

The court overturned three other provisions on pre-emption grounds. "Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the state may not pursue policies that undermine federal law," Kennedy said.

The provisions struck down by the court:

• Make it a crime for immigrants to fail to obtain and carry federal registration documents. "Permitting the state to impose its own penalties for the federal offenses here would conflict with the careful framework Congress adopted," Kennedy wrote.

• Make it a crime for illegal immigrants to work or apply for work. Federal law imposes civil rather than criminal penalties for illegal immigrants who engage in unauthorized work, Kennedy said. Although the Arizona law "attempts to achieve one of the same goals as federal law—the deterrence of unlawful employment—it involves a conflict in the method of enforcement," Kennedy said.

• Authorize warrantless arrests when there is probable cause to believe a person has committed a public offense warranting deportation. Under federal law, an administrative document is issued when an alien is subject to deportation; the attorney general has discretion to authorize an arrest pending a removal decision. The state law authorizes arrests without federal input. "The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed," Kennedy said.

Kennedy was joined in his opinion by Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor. Justice Elena Kagan did not participate in the case.

"It 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," Kennedy wrote.

Justice Antonin Scalia would have upheld all four provisions, he wrote in a concurring and dissenting opinion. States had a long-time role in regulating immigration, and the Constitution did not eliminate their power to do so, he said. "Arizona has moved to protect its sovereignty—not in contradiction of federal law, but in complete compliance with it," he wrote. "The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign state."

Justices Clarence Thomas wrote that he would have upheld all four provisions, though he differed with Scalia on the reason. Justice Samuel A. Alito Jr. would have upheld three provisions.

The case is Arizona v. United States.

In a press release, ABA President Wm. T. (Bill) Robinson III applauded the holding striking down three provisions of the Arizona law. "As the ABA argued in the amicus brief it filed in the case, immigration law and policy are and must remain uniquely federal, with states having no role in immigration enforcement except pursuant to federal authorization and oversight," Robinson said.

"In light of the court's ruling that upholds immigration status checks by state law-enforcement officials under Section 2(B) that are conducted consistent with federal immigration and civil rights laws, the ABA calls on authorities to avoid unnecessary, prolonged detention of individuals who are lawfully present in the United States," Robinson added.

Updated on June 26 to add Robinson's statement.

Prior coverage:

ABAJournal.com: "In Another Verrilli-Clement Battle, High Court Seems Sympathetic to Ariz. Immigration Status Checks"

ABAJournal.com: "ABA Urges Supreme Court to Overturn Ariz. Law Requiring Immigration Checks of Some Arrestees"

ABAJournal.com: “Chemerinsky: Arizona Immigration Case Closes a Momentous Court Term”

ABA Journal: “Immigration’s Next Chapter: Arizona to Tell Its Tale of How to Stop Illegal Immigrants”

ABAJournal.com: "Supreme Court Agrees to Hear Challenge to Controversial Arizona Immigration Law"

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