Government & Constitution

Supreme Court surgically upholds parts of Arizona immigration law

The Supreme Court handed down a mixed decision on Arizona’s immigration law on Monday.  The Reuters news service promptly characterized the decision as a “defeat for Obama,” even though three out of four key provisions in the law were struck down.

Struck down were Arizona’s requirement for aliens to carry registration papers, the law’s application of criminal penalties for employing illegal aliens, and the authorization of warrantless arrests for deportable crimes.

However, Arizona’s requirement for police officers to make reasonable efforts to determine the immigration status of people detained for other infractions was upheld.  This was perhaps the most contentious provision of the law, since it amounted to the state of Arizona forcing the federal giant to wake up and perform a duty it would rather avoid.  Most of the intense criticism leveled at Arizona’s law was directed at this provision, including charges that it would lead police officers to conduct purges of suspected illegal immigrants, hassling anyone who merely looked as if they might be illegal.

The law explicitly forbids such harassment, but that didn’t mollify the critics.  The Supreme Court just answered them definitively, and while some significant portions of Arizona’s law have been struck down, the law itself has survived, and will now go into effect.  The decision is sure to be widely discussed in the days ahead; click here to read it in full.

Update: Some further reflections on the Supreme Court ruling… One of the provisions struck down was Arizona’s attempt to enforce penalties upon businesses which hire illegal aliens.  Since the President has openly asserted his refusal to apply such penalties at the federal level – he’s granting hundreds of thousands of work permits to illegals under his “DREAM Act By Fiat” power grab – the only method remaining to state governments for the detection of illegal aliens is the measure the Court upheld, namely confirming immigration status during other law enforcement actions.

The Court confirmed that most immigration issues remain the exclusive province of the federal government.  In theory, that sounds reasonable.  No matter how enthusiastic one might be for the devolution of federal power to state and local governments, there remain some matters the federal government should deal with, and border security is one of them.  Immigration policy affects every state, after all.  Border states may feel those effects most immediately and directly… but not exclusively.

There’s no reason the federal government should not cooperate with state authorities in the defense of U.S. citizenship, however.  In fact, it should be eager to seek out such assistance.  Even under Obama’s DREAM Act By Fiat, there are still some illegal immigrants – he didn’t grant blanket amnesty to every last one of them.  Immigration law has been broadened through the President’s possibly illegal exercise of raw power, but it has not been erased.  Why shouldn’t he be grateful for the assistance of state authorities in locating the immigration scofflaws who remain?

How else is law enforcement, at any level, supposed to establish contact with those who violate immigration law?  The federal government, broadly speaking, gets one serious opportunity to encounter illegal aliens, when they cross the national border.  After that, it’s hard to imagine a real effort to enforce immigration law that would not depend upon state and local law enforcement to detect violators.

In fact, we are routinely told by amnesty proponents that the detection of immigration lawbreakers is effectively impossible.  There’s just no way to find them, because they “live in the shadows,” raising generations of children who now require DREAM Act immunity from deportation.  But Arizona will now be able to demonstrate this assertion is false – they’re going to forward numerous requests for immigration status checks to federal authorities.  It will be clear and obvious that the federal government simply refuses to perform its duty.  It will no longer be possible to pretend that performance of that duty is impossible.

Justice Antonin Scalia, who wanted to uphold the entirety of Arizona’s immigration law, made an interesting point in his dissenting opinion: if the states had been told in 1787 that immigration would be entirely a matter of presidential discretion, and the President could simply choose to nullify the law on a whim, their delegates would have “rushed to the exits” instead of ratifying the Constitution.  It would be contrary to the spirit of the Union to make the states entirely responsible for defense of the national border – they’d have to begin aggressively policing their borders with each other, to guard against illegal immigrants slipping into a “lax” state and then migrating into those which take citizenship seriously.  But what happens when the federal government decides to abdicate its responsibilities – not even bothering to change immigration law, but rather refusing to enforce it for ideological reasons?  At a bare minimum, the states must be able to do what Arizona will now begin doing: make it clear this is willful negligence, not well-meaning incompetence in the face of an impossible task.

Update: Pursuant to the point about how the federal government should be “eager” for state law enforcement assistance: on the contrary, Fox News reports the Obama Administration has thrown a temper tantrum in the wake of today’s Supreme Court ruling, and suspended “a key program that allowed state and local law enforcement to enforce federal immigration law.”

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