The Supreme Court in Washington, Monday, June 25, 2012. (AP Photo/Evan Vucci)
Arizona’s campaign to implement its own anti-immigration law and enforcement policy—a campaign emulated by several other states since—came to a virtual dead end today, as the United States Supreme Court ruled that immigration law is the prerogative of Congress and the Executive, and that states may not adopt laws or enforcement policies that conflict with the federal scheme. Although many people predicted after oral arguments that much of Arizona’s law would be upheld, the Court struck down three of the four provisions at issue as inconsistent with federal law. Even in regards to the fourth provision, the so-called “show me your papers” rule authorizing Arizona police to check the immigration status of persons they have stopped or arrested, the Court merely said that it was too early to tell whether it was valid or invalid. It said that a ruling on its legality would have to wait and would depend on how it is interpreted and applied. If, as seems highly likely, this provision is enforced in a way that invites racial profiling, it may well be invalidated yet. In short, the decision, written by Justice Anthony Kennedy and joined by Chief Justice John Roberts and Justices Ginsburg, Breyer and Sotomayor, was a virtually complete victory for the federal government, and a huge loss for anti-immigrant forces.
In some respect, this should not have come as a huge surprise. While the politics of immigration is deeply divided, both conservative and liberal justices have long been united on one thing: immigration law is a federal matter. The immigration power is expressly assigned to Congress by the Constitution, and it obviously implicates basic questions of federal sovereignty and foreign relations. To allow each state to enforce its own immigration law would be a total disaster. Today’s ruling reinforces that principle, holding that Congress has plenary power over how to legislate on immigration, and that the Executive has authority over how to enforce immigration law (as President Obama illustrated two weeks ago in announcing that he would exercise his discretion to stop deporting certain young illegal immigrants).
Two of the four provisions at issue made it a crime under Arizona law to be in the United States in violation of federal immigration law. Arizona argued that since it was only adding state penalties to conduct that federal law already made illegal, it was acting within its authority. The Court rejected that argument, holding that it is Congress’s decision how to punish violations of the immigration law, not Arizona’s. Arizona made crimes out of infractions that Congress chose to treat only as civil immigration law matters. That, the Court said, is flatly inconsistent with the federal immigration scheme. Under this part of the decision, all copycat state laws that add criminal penalties to federal immigration infractions will almost certainly be impermissible.
A third provision authorized Arizona police to make warrantless arrests of persons they have probable cause to believe were here in violation of federal immigration law. Again, Arizona said it was just “cooperating” with federal authorities, by arresting people who appeared to be violating federal law. But again, the Court dismissed the contention, pointing out that Arizona had given its officers greater power to arrest immigrants than Congress had given its own federal officers. Congress has said that state officers may cooperate with the federal government on immigration, the Court noted, but only where invited to do so (and under current law, only where first trained in the complexities of immigration law). Whatever “cooperation” means, the Court reasoned, it cannot possibly encompass the “unilateral decision of state officers to arrest an alien for being removable absent any request, approval, or other instruction from the Federal Government.”