Federalism wins

WASHINGTON-Arizona Gov. Jan Brewer declared the U.S. Supreme Court's decision on Arizona's immigration law Monday a "victory," but anyone else might call this opinion a defeat for the state. The high court, by a 5-3 majority, struck down three of the four challenged provisions of the law, and said the remaining provision could still face challenges once it goes into effect. None of the four provisions has been in effect since the law passed in 2010 due to court injunctions.

The one part the court preserved was state law enforcement officers' ability to check the immigration status of those they reasonably suspect are in the country illegally, which Brewer described as the "heart" of the law. The court struck down three other provisions: Section 3, which made being in the country illegally a crime, Section 5(c), which made it a crime for undocumented immigrants to work or attempt to work, and Section 6, which allowed law enforcement officers to make warrantless arrests of undocumented immigrants. (Download a PDF of the opinion.)

The decision will ripple to states beyond Arizona, because over the last two years a number of them-Utah, Alabama, Indiana, Georgia, and South Carolina-have passed similar immigration laws and have faced similar legal challenges. (See "Law and orders," WORLD, April 7.) Some federal courts were waiting on the Supreme Court's ruling to decide these other states' cases.

Justice Anthony Kennedy wrote the court's opinion, joined by Chief Justice John Roberts, Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. Justices Antonin Scalia, Clarence Thomas, and Samuel Alito each filed dissenting opinions, though they agreed with upholding the "check the papers" provision. Justice Elena Kagan, who previously worked as solicitor general in the current administration that challenged the law, recused herself.

Under the "check the papers" provision, law enforcement would simply inform the federal government when it discovers an undocumented immigrant.

"Congress has done nothing to suggest it is inappropriate to communicate with [Immigration and Customs Enforcement] in these situations," wrote Kennedy. "Indeed, it has encouraged the sharing of information about possible immigration violations."

Roberts told the government lawyer during the arguments that if Arizona called, the U.S. government could simply "answer the phone and not write anything down"-in other words, that Arizona wasn't obligating the federal government to take any action.

But even that provision could face challenges, Kennedy wrote for court, because the federal government brought a lawsuit against Arizona before that provision went into effect. "There is a basic uncertainty about what the law means and how it will be enforced," he wrote. Most public attention has centered on allegations that the provision would result in racial profiling, but the federal government never challenged the provision on that basis. Roberts made sure in the oral arguments to point out that the court was not addressing potential racial profiling at all. (See "Arizona in the dock," April 25.)

On Section 3, which makes not registering as an immigrant illegal, Kennedy noted that under federal law trespass is a civil violation, not a criminal one. Registration of immigrants, he wrote, is a fully federal matter, and Arizona has no claim whatsoever to regulate that area of law.

On Section 5(c), making undocumented work a crime, Kennedy said Arizona's law directly conflicted with federal law. "Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment," he wrote. Again, federal law imposes civil, not criminal penalties, he noted. The court has given states limited authority to police employment: Last year, in U.S. Chamber of Commerce v. Whiting,the court approved Arizona's law that requires employers to check the immigration status of their employees.

The court said Section 6, allowing warrantless arrests, would give law enforcement too much authority outside of the federal government. "This would allow the state to achieve its own immigration policy," he wrote. "This is not the system Congress created."

Kennedy concluded with a flourishing tribute to immigrants and to the federal government's power to regulate immigration. "Immigration policy shapes the destiny of the nation," he wrote, describing immigrants taking their citizenship oath before the "tattered" Star-Spangled Banner in Washington, D.C. "The history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here. The national government has significant power to regulate immigration. … 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."

Meanwhile, Scalia said that he would have upheld all of the challenged provisions in the Arizona law and he scolded the majority for providing "immunity from enforcement" for thousands of undocumented immigrants. "Arizona bears the brunt of the country's illegal immigration problem," he wrote, in a dissent that no one joined. "Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so."

Alito dissented for different reasons. He agreed with the court in throwing out Section 3, making undocumented immigration a crime, but he disagreed on throwing out the other provisions. He said the court gave "short shrift to our presumption against preemption." Translation: The Supreme Court usually puts the burden on the federal government to prove that it preempts a state law, but Alito thought the court didn't set the bar very high for the federal government in this case.

The court also announced on Monday that it would release all its remaining opinions on Thursday-which will include the opinion on the healthcare law.

Listen to a report on the Supreme Court's decisions on WORLD's radio news magazine The World and Everything in It.