Supreme Court Strikes Down Three Provisions of Arizona's SB 1070 Immigration Enforcement Law While Declining to Strike Down a Fourth, More Controvesial Provision of the Measure
By Micheal E. Hill
Monday, April 25, 2012 -- 1:20 pm EDT
--Updated on Sunday, July 1, 2012, at 11:38 pm EDT--
The Supreme Court of the United States declined to strike down one provision and struck down three other provisions of Arizona's controversial SB 1070 immigration enforcement law. The Court acted on Monday, June 25, 2012, on what will be the next-to-the-last day of its term.
The Court declined, for the moment, to strike down Section 2(B) of the law, which is derisively referred to by pro-immigrant advocates as the "Papers, Please" provision of the measure. However, it struck down three other sections of the law as unconstitutional: Sections 3, which sought to make it a crime under Arizona law for an alien to not carry their immigration documentation; Section 5(C), which would have made it a crime for an unauthorized alien to seek work in Arizona; and Section 6, which would have authorized state and local police officers to arrest aliens without a warrant if they had probable cause that they were removable.
The ruling on the three sections of SB 1070 that the Court invalidated came in a 5-3 decision that was authored by Associate Justice Kennedy. Joining in the majority opinion were Chief Justice John Roberts and Associate Justices Ginsburg, Breyer, and Sotomayor. Dissenting were Associate Justices Scalia, Thomas, and Alito. Associate Justice Kagan recused herself from the case.
The Court unanimously declined to strike down Section 2(B). However, five of the votes came from the majority opinion and three associate justices wrote concurring opinions that did not necessarily buy into the precise reasoning of the majority.
In declining to strike down Section 2(B), the Court invited further litigation on the section, stating that it could not strike it down without first seeing how it played out on the ground. More specifically, the Court held that "[i]t was improper to enjoin §2(B) before the state courts had an opportunity to construe it and without some showing that §2(B)’s enforcement in fact conflicts with federal immigration law and its objectives." It went on to warn Arizona about implementations of the law that it might find are unconstitutional, though, and it noted that "[t]his opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect."
In striking down Sections 3, 5(C), and 6, the Associate Justice Kennedy wrote, "Arizona may have understandable frustrations with the problems caused by illegal immigration ... but the state may not pursue policies that undermine federal law."
Provision that the Court Declined to Strike Down
The following provision was not stricken down by the Court:
- Section 2(B) requires state and local police officers to attempt to determine the immigration status of any person stopped under state or local law if “reasonable suspicion” exists that the person is unlawfully present in the United States. This section also requires state and local authorities to determine the immigration status of any person placed under arrest, regardless of whether the person is suspected of being in the country unlawfully.
Provisions Stricken Down by the Court:
The following provisions were stricken down as unconstitutional by the Court:
- Section 3 of SB 1070 would have made it a crime under Arizona law for unauthorized immigrants to violate the provisions of federal law requiring them to apply for “registration” with the federal government and to carry a registration card if one has been issued to them. Violations of this provision would have been punishable by up to 20 days in jail for a first violation and 30 days in jail for subsequent violations.
- Section 5(C) would have made it a crime under Arizona law for immigrants who are not authorized to work in the United States to apply for work, solicit work in a public place, or perform work within the state’s borders. Under the law, the term “solicit” meant any form of communication, including a gesture or nod, indicating that a person is willing to be employed.
Reaction in Washington
Reaction in Washington to the Court's decision on the Arizona law was swift, if not mixed and unpredictable.
- Section 6 would have authorized state and local police officers to arrest immigrants without a warrant where “probable cause” exists that they committed a public offense making them removable from the United States. Under the provision, Arizona law enforcement officers would have been permitted to arrest lawfully present immigrants for crimes committed outside the state, or for crimes for which they were previously incarcerated, if the commission of such a crime was a ground for deportation.
- President Obama. President Obama reacted to the decision of the Court cautiously, saying, "I am pleased that the Supreme Court has struck down key provisions of Arizona’s immigration law. What this decision makes unmistakably clear is that Congress must act on comprehensive immigration reform. A patchwork of state laws is not a solution to our broken immigration system – it’s part of the problem.
"At the same time, I remain concerned about the practical impact of the remaining provision of the Arizona law that requires local law enforcement officials to check the immigration status of anyone they even suspect to be here illegally. I agree with the Court that individuals cannot be detained solely to verify their immigration status. No American should ever live under a cloud of suspicion just because of what they look like. Going forward, we must ensure that Arizona law enforcement officials do not enforce this law in a manner that undermines the civil rights of Americans, as the Court’s decision recognizes. Furthermore, we will continue to enforce our immigration laws by focusing on our most important priorities like border security and criminals who endanger our communities, and not, for example, students who earn their education – which is why the Department of Homeland Security announced earlier this month that it will lift the shadow of deportation from young people who were brought to the United States as children through no fault of their own.
"I will work with anyone in Congress who’s willing to make progress on comprehensive immigration reform that addresses our economic needs and security needs, and upholds our tradition as a nation of laws and a nation of immigrants. And in the meantime, we will continue to use every federal resource to protect the safety and civil rights of all Americans, and treat all our people with dignity and respect. We can solve these challenges not in spite of our most cherished values – but because of them. What makes us American is not a question of what we look like or what our names are. What makes us American is our shared belief in the enduring promise of this country – and our shared responsibility to leave it more generous and more hopeful than we found it."
- Governor Romney. Former Governor Mitt Romney, the presumed 2012 Republican Presidential nominee said of the decision immediately after it was announced, "[t]oday's 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. President Obama has failed to provide any leadership on immigration.This represents yet another broken promise by this President. I believe that each state has the duty--and the right--to secure our borders and preserve the rule of law, particularly when the federal government has failed to meet its responsibilities. As Candidate Obama, he promised to present an immigration plan during his first year in office. But 4 years later, we are still waiting."
Governor Romney commented a bit more pointedly on the subject later in the evening, saying at an Arizona fundraising event, "I would have preferred to see the Supreme Court give more latitude to the states not less. And there are states now under this decision have less authority, less latitude, to enforce immigration laws. And it's really - it's become a muddle. But it didn't have to be this way. The president promised in his campaign that in his first year he would take on immigration and solve our immigration challenges, put in place a long term program to care for those that want to come here legally, to deal with illegal immigration, to deal with securing our borders. All these things he was going to in his first year. He had a Democrat House and a Democrat Senate, but he didn't do it. Isn't it time for the American people to ask him: Why?
"And because he didn't act, states and localities have tried to act and now the courts trying to get into it and sort things out and it's a muddle. It's a muddle because he failed to do what he said he'd do. Why? Why didn't he do it? Why has he been there three and a half years and no one has called him to task for not answering that question? Why, Mr. President, did you not do what you said you'd do? You had a Democrat House, a Democrat Senate - why didn't you reform immigration or at least propose something?
"Work with people on both sides of the aisle. Why, Mr. President, why have you failed to lead? It's only one more place where he's failed to lead. One thing I can tell you, if I'm president of the United States, I will lead.
"I will lead on this issue, among others. In my first year I will make sure we actually do take on immigration, we secure our border, we make sure that we grow legal immigration in a way that provides people here with skill and expertise that we want. This is an issue that has to be tackled, I will tackle it, not with stop-gap measures but with the kind of work that's done across the aisle by people of good faith."
- Attorney General Holder. Attorney General Eric H. Holder, Jr., issued a statement shortly after the ruling saying, “I welcome the Supreme Court’s decision to strike down major provisions of Arizona’s S.B. 1070 on federal preemption grounds. 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.
“While I am pleased the Court confirmed the serious constitutional questions the government raised regarding Section 2, I remain concerned about the impact of Section 2, which requires law enforcement officials to verify the immigration status of any person lawfully stopped or detained when they have reason to suspect that the person is here unlawfully. 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. 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.
“We will also work to ensure that the verification provision does not divert police officers away from traditional law enforcement efforts in order to enforce federal immigration law, potentially impairing local policing efforts and discouraging crime victims, including children of non-citizens, victims of domestic violence, and asylum seekers, from reporting abuses and crimes out of fear of detention or deportation. We will continue to use every federal resource to protect the safety and civil rights of all Americans.”
- Majority Leader Reid. Senate Majority Leader Harry Reid (D-NV) took to Twitter immediately after the ruling, tweeting, "I’m greatly concerned AZ provision endangering innocent citizens of being detained —unless carrying papers – will lead to racial profiling.” Continuing, he tweeted, “Ultimately, responsibility to fix nation’s broken immigration system lies w/Cong.; Rs must join Ds to forge fair, tough, practical solutions.”
- Senators McCain and Kyl. Arizona's two United States Senators issued a joint statement in reaction to the ruing, asserting, "[t]he Arizona law was born out of the state’s frustration with the burdens that illegal immigration and continued drug smuggling impose on its schools, hospitals, criminal justice system and fragile desert environment, and an Administration that chooses to set enforcement policies based on a political agenda, not the laws as written by Congress. We will continue our efforts on behalf of the citizens of Arizona to secure our southern border. We believe Arizonans are better served when state and federal officials work as partners to protect our citizens rather than as litigants in a courtroom.”
- Chairman Patrick Leahy. Senate Judiciary Committee Chairman Patrick Leahy (D-VT) said of the ruling, "[t]he Supreme Court reaffirmed what the Constitution makes clear: Congress has the authority to make laws setting our national immigration policy. By striking down three of the four provisions at issue in the case, the Court sent anti-immigrant activists a strong message. A patchwork of conflicting immigration laws is not a sustainable result, and I am pleased that the Supreme Court recognized that in striking down a number of overreaching provisions in the Arizona law.
“Although the Court did not strike down a section of the Arizona law that would require police officers to check an individual’s immigration status upon a stop or an arrest, the majority made clear that its application could raise serious constitutional questions. I share those concerns.
“The reluctance of some in Congress to work to meet our immigration challenges recently led the President and the Secretary of Homeland Security to act under their authority to devise an immigration enforcement policy that is consistent with America’s values, history and traditions. I applauded the President and Secretary Napolitano for their actions, but Congress must act to make the lasting improvements our system needs. I hope today’s decision will encourage congressional Republicans to join with us to enact comprehensive immigration reform.”
- Chairman Lamar Smith. House Judiciary Committee Chairman Lamar Smith (R-TX), one of the leading voices in Congress in favor of immigration restrictionist policies, expressed deep disappointment with the Supreme Court decision. In a statement that he released on the morning of the decision, Smith said, “I am disappointed by the Supreme Court’s decision today, which limits the ability of states to protect their citizens and communities from illegal immigrants. It is the federal government’s job to enforce our immigration laws, but President Obama has willfully neglected this responsibility. This dereliction of duty has left states to address the crime, job loss, and other costs of illegal immigration.
“Unfortunately, under this Administration, today’s ruling essentially puts an end to immigration enforcement since the states no longer can step in and fill the void created by the Obama administration. This is especially bad news for border states since they have to deal with border violence, drug trafficking and illegal immigration.
“Throughout the past three years, President Obama and his administration have ignored our immigration laws and have encouraged more illegal immigration by their actions. President Obama has abused his executive branch authority to allow potentially millions of illegal immigrants to live and work in the U.S. And under this Administration, worksite enforcement has plummeted 70%, allowing illegal immigrants to hold jobs while 13 million Americans are looking for work.
“According to a recent poll, two-thirds of the American people want to see our laws enforced. But President Obama puts illegal immigrants and his partisan agenda ahead of the interests of the American people. If our immigration laws are going to be enforced, we need a new President this January who will enforce immigration laws, not deliberately ignore them.”
- Ranking Minority Member Charles Grassley. Chairman Smith's Republican counterpart in the Senate was not so critical of the Court's decision in the Arizona case, taking to Twitter after the decison was announced and asserting, "SupremeCt today's Arizona immigration case allows states to protect its citizens fr crime commited by undocumented people when Feds don't."
- Chairman Charles Schumer. Senate Judiciary Subcommittee on Immigration, Refugees, and Border Security Chairman Charles Schumer (D-NY) said of the decision, “[t]his is as strong a repudiation of the Arizona law as one could expect given that the law has not been implemented yet. Three linchpins of the Arizona law were struck down by a convincing majority of the Court as clearly violating federal law, and a fourth is on thin legal ice. The Court is sending a stern warning to Arizona that the provision allowing local law enforcement to check people’s immigration documents cannot be implemented in a discriminatory or draconian way, or it will be thrown out like the rest of the law. This decision tells us that states cannot take the law into their own hands and makes it clear that the only real solution to immigration reform is a comprehensive federal law. The decision should importune Republicans and Democrats to work together on this issue in a bipartisan way.”
- Representative Luis Gutierrez. Congressional Hispanic Caucus Immigration Task Force Chairman Luis Gutierrez (D-IL) expressed disappointment with the Court's decision, asserting that "[t]he Supreme Court dealt a blow to the anti-immigrant movement, but also dealt a blow to Latinos and immigrants living in the United States. This threatens the safety of all Americans and undermines the fundamental relationship between police and the communities they serve, and I am proud that Chicago is not going down that road."
Continuing, Representative Gutierrez said, "[a] central part of the law, which requires state and local law enforcement to check someone's citizenship status in the course of their duties, was upheld and will sanction pretextual stops and racial profiling. This gives a green light to Arizona sheriffs and others to use someone's clothing, accent, or appearance to take them to jail and hold them until their immigration status, if any, is sorted out.
"Experience has shown us that police are highly unlikely to stop an individual with the last name of Kennedy or Roberts on suspicion of not being a legal U.S. citizen, but if you are a Gutierrez or Martinez, watch out. The express goal of the authors of Arizona's SB1070 is to target immigrants for harassment and make their lives miserable, and a key tool in that effort was upheld by the Court.
"In our nation's history, the Supreme Court has been at its best when it expands freedom and demands that all Americans are treated fairly. This court fell short of that ideal today. Leaders who understand that allowing police to target anyone they choose, including American citizens, simply based on the way they look, or the sound of their voice, is wrong and has no place in our great country.
"The President and Attorney General fought hard against the Arizona law and deserve praise for their leadership. Much of this decision is a victory for our community. This President is not afraid to do the right thing when faced with injustice. Now the Department of Homeland Security and Department of Justice and the White House have an even more important role in making sure federal immigration laws are not further undermined by and dictated by the states.
"The President must stand firm because only the federal government can deport someone or turn a routine traffic stop into a lifetime of exile or a family permanently split apart.
"The President's announcement last Friday is all the more important because the Supreme Court has moved to allow states to pick up thousands of low priority deportable immigrants, who could potentially flood already overtaxed deportation resources. Affirmatively protecting DREAM-eligible young immigrants from deportation will help mitigate the damage done by state legislators and the Supreme Court.
"Now that leadership from our President is even more vital, it is important to note that Mitt Romney has called the Arizona law -- much of which was just deemed unconstitutional by the nation's highest court -- a "model for the nation." He counts on the main architect of this now-discredited law as a key immigration advisor. Today, the difference in leadership between President Obama and Mr. Romney could not be clearer. I urge Mr. Romney to repudiate his support for a policy now found to be largely unconstitutional."
The Court's decision will now be analyzed both in Washington and around the country with an eye towards how it will impact other state laws in Georgia, Alabama, Utah, and elsewhere. Moreover, the Court's decision almost certainly will be the subject of legislation that will be introduced in Congress in the coming days. And further litigation over Section 2(B) of SB 1070, as well as over other provisions that have not yet been brought before the Supreme Court, is a certainty.