Three Arizona Immigration Law|Sections Do Not Pass Scrutiny

     (CN) – It is too soon to say whether Arizona police officers can check the immigration status of anyone they stop or arrest, the Supreme Court ruled Monday, but the justices found that three other components of the state’s controversial regulations would improperly usurp federal law.



     The court heard a challenge to four sections of Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act of 2010, more commonly known as SB1070, in April.
     Section 2(B), the so-called “papers please” provision, requires police officers in the state to check the immigration status of anyone they stop or arrest if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.”
     Since the law has yet to go into effect, however, the justices said Monday that they could not determine whether the provision encroaches on federal supremacy.
     “However the law is interpreted, if §2(B) only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive preemption – at least absent some showing that it has other consequences that are adverse to federal law and its objectives,” Justice Anthony Kennedy wrote for a four-member majority. “There is no need in this case to address whether reasonable suspicion of illegal entry or another immigration crime would be a legitimate basis for prolonging a detention, or whether this too would be preempted by federal law.”
     Monday’s ruling “does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect,” Kennedy added.
     But three other components of the law would clearly usurp federal law, the majority found.
     Section 3, which carries misdemeanor charges for not complying with federal alien registration requirements, encroaches on entirely federal regulations, the court said.
     “Where Congress occupies an entire field, as it has in the field of alien registration, even complementary state regulation is impermissible,” Kennedy wrote. “Field preemption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards.”
     Similarly, the justices found that Section 5, which tries to prevent illegal immigrants from seeking work in Arizona, conflicts with the federal Immigration Reform and Control Act of 1986, a law in which “Congress decided it would be inappropriate to impose criminal penalties on aliens who seek or engage in unauthorized employment.”
     The court also struck down Section 6 of the law, which would allow the warrantless arrest of anyone whom an officer had cause to believe committed a crime worthy of deportation.
     “Section 6 attempts to provide state officers even greater authority to arrest aliens on the basis of possible removability than Congress has given to trained federal immigration officers,” Kennedy wrote. “Under state law, officers who believe an alien is removable by reason of some ‘public offense’ would have the power to conduct an arrest on that basis regardless of whether a federal warrant has issued or the alien is likely to escape. This state authority could be exercised without any input from the federal government about whether an arrest is warranted in a particular case. This would allow the state to achieve its own immigration policy. 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. This is not the system Congress created. Federal law specifies limited circumstances in which state officers may perform the functions of an immigration officer.” (Parentheses in original.)
     Pursuing a policy of “attrition through enforcement,” the Arizona Legislature adopted the tough immigration law in 2010, and the issue has been championed by the state’s Republican governor, Jan Brewer.
     A Phoenix federal judge enjoined four provisions of the law before it took effect, and the 9th Circuit affirmed. The high court’s decision Monday upheld most of the 9th Circuit’s ruling.
     Justices Antonin Scalia, Clarence Thomas and Samuel Alito each authored separate, partially dissenting opinions.
     “Today’s opinion, approving virtually all of the Ninth Circuit’s injunction against enforcement of the four challenged provisions of Arizona’s law, deprives states of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there,” Scalia wrote. “Neither the Constitution itself nor even any law passed by Congress supports this result.”
     Alito objected to the court’s findings on sections 5 and 6 of the law.
     “Because state police powers are implicated here, our precedents require us to presume that federal law does not displace state law unless Congress’ intent to do so is clear and manifest,” Alito wrote. “I do not believe Congress has spoken with the requisite clarity to justify invalidation of §5(C). Nor do I believe that §6 is invalid.
     Like §2(B), §6 adds virtually nothing to the authority that Arizona law enforcement officers already exercise. And whatever little authority they have gained is consistent with federal law.”
     Justice Elena Kagan did not participate in the court’s consideration or decision of the case.
     Brewer called the decision a victory, saying the court upheld the “heart” of the law.
     “Today’s decision by the U.S. Supreme Court is a victory for the rule of law,” Brewer said in a statement. “It is also a victory for the 10th Amendment and all Americans who believe in the inherent right and responsibility of states to defend their citizens. After more than two years of legal challenges, the heart of SB 1070 can now be implemented in accordance with the U.S. Constitution.”
     “Today’s ruling appropriately bars the State of Arizona from effectively criminalizing unlawful status in the state and confirms the federal government’s exclusive authority to regulate in the area of immigration,” Holder said in a statement.
     The government’s chief lawyer added that he still has concerns about Section 2.
     “As the court itself recognized, Section 2 is not a license to engage in racial profiling and I want to assure communities around this country that the Department of Justice will continue to vigorously enforce federal prohibitions against racial and ethnic discrimination,” Holder said. “We will closely monitor the impact of S.B. 1070 to ensure compliance with federal immigration law and with applicable civil rights laws, including ensuring that law enforcement agencies and others do not implement the law in a manner that has the purpose or effect of discriminating against the Latino or any other community.”

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