This is the fifth post in our online symposium on today’s decision in Arizona v. United States, the federal government’s challenge to Arizona’s S.B. 1070. During the next few days, we will be posting a series of essays on the decision by lawyers and scholars in the field. Mr. Samp served as counsel of record for Washington Legal Foundation in in several federal court briefs filed by WLF in support of S.B. 1070, including a Supreme Court brief filed on behalf of House Judiciary Committee Chairman Lamar Smith and 11 other Members of Congress.
The decision to uphold Sec. 2(B) is a strong affirmation of the right of state and local governments to adopt measures to assist in the enforcement of federal immigration law.
Given the frosty reception the Obama Administration received from the U.S. Supreme Court during April’s oral arguments, today’s decision in the Arizona immigration case was probably the best that the Administration could have hoped for. The unanimous decision upholding the key provision of the Arizona’s immigration law (Section 2(B)) can nonetheless only be viewed as a significant defeat for the Administration.
In filing suit in 2010 against Arizona’s SB 1070, the Administration essentially took the position that States are permitted to assist with immigration law enforcement only to the extent that the Executive Branch explicitly calls for assistance. Thus, in challenging Section 2(B), B which directs Arizona law enforcement officers to check the immigration status of anyone they have lawfully stopped, whenever they have a reasonable suspicion that the individual is an illegal alien, the Administration argued that Section 2(B) skews enforcement priorities by forcing federal officials to respond to what it anticipated would be a groundswell of requests for immigration-status information. The Court found no merit in that argument, noting that Congress adopted a statute that explicitly encourages States to assist with immigration enforcement by asking for information on immigration status of those in its custody, and that requires federal officials to respond.
In other words, although all agree that federal authorities have the final say regarding which aliens are permitted to remain in the country, today’s decision confirmed that States have an important role to play in immigration law enforcement. Arizona has every right to attempt to determine who among those in its custody are in the country illegally, and then offer to turn over to the federal government those determined to be illegal. As the Court recognized, Section 2(B) provides that Arizona officials will do no more than that; any decision regarding whether to deport the illegal aliens or release them will be up to the federal government.
The Administration’s petulant response to today’s decision suggests that it is having a difficult time accepting defeat. According to several press reports, unnamed Administration officials told reporters that, in response to the decision, the Department of Homeland Security (DHS) is suspending its partnership with a number of Arizona law enforcement departments, whereby DHS worked with those departments to identify and detain illegal aliens. What DHS hopes to achieve by that decision is difficult to understand. Before the Supreme Court, the Administration argued that all local assistance with immigration law enforcement should be channeled through such Section 287(g) partnerships. The Court rejected that argument; its decision to uphold Section 2(B) was based on its conclusion that Congress has broadly encouraged state and local governments to discover the immigration status of their detainees and to offer to give DHS custody of any detainees determined to be in the country illegally. The net result: such offers will continue, but they will now be coming exclusively from Arizona law enforcement personnel who are not working directly with DHS personnel in connection with a Section 287(g) partnership.
Press reports also quote DHS officials as indicating that they will reject most of the offers from Arizona to take custody of Arizona detainees who have been identified by DHS as being unlawfully present in this country. DHS will be entirely within its rights in doing so, and Arizona has never contended otherwise. Whether those unlawfully present should be placed into removal proceedings, and whether they should be detained pending removal, is a matter entirely within the discretion of the federal government. From a public relations standpoint, however, it may be difficult for federal officials to explain their actions if, for example, Arizona officials each week release a list of the number of illegal aliens they were forced to release from custody because federal officials declined enforcement.
The Supreme Court’s decision to overturn the preliminary injunction against enforcement of Section 2(B) will not end judicial challenges to the provision. An ACLU lawsuit that has been pending since 2010 raises a variety of constitutional challenges to Section 2(B), including a claim that the provision will inevitably result in racial discrimination against Arizonans of Hispanic descent. Such as-applied challenges appear to be extremely premature at this point, given that Arizona has not yet begun implementing the law. The claims of individuals who, at some point in the future, may assert that they have been discriminated on the basis of race should be taken seriously. Given that federal immigration officials have been able to enforce our immigration laws without any serious claims that they are doing so on a racially discriminatory basis, however, there is no reason to assume that state officials are incapable of doing an equally good job.
The Supreme Court identified one other possible ground for challenging Section 2(B) –ironically, a ground not raised by the Solicitor General. The Court said that Section 2(B) would raise constitutional concerns if, once it begins to be enforced, it unnecessarily delays the release of some detainees for no reason other than to verify their immigration status. It would be surprising if opponents of Section 2(B) could ever prevail on that argument on remand, however; armed with the guidance provided by today’s decision, Arizona almost surely will instruct law enforcement personnel not to delay releases even if they do not receive prompt responses from DHS regarding the immigration status of detainees. A delayed-response policy would, of course, provide DHS a means of undermining the effectiveness of Section 2(B). But such a policy could be another source of public relations concern for DHS, if those released because of a delayed DHS response are later discovered to be illegal aliens with a criminal record.
Today’s decision should be welcomed by state and local governments because it provides them with additional guidance regarding the extent to which federal law preempts local efforts to assist with immigration law enforcement. The decision striking down Sections 3 and 5(C) of S.B. 1070 indicates that the Court is likely to deem preempted any local law that seeks to impose additional criminal penalties on unlawfully present aliens, even if DHS itself has made the unlawfully present determination. On the other hand, the decision to uphold Section 2(B) is a strong affirmation of the right of state and local governments to adopt measures to assist in the enforcement of federal immigration laws, regardless whether federal officials want the assistance. Some jurisdictions have been holding off in adopting such laws for fear that doing so would invite expensive litigation. The guidance provided by today’s decision provides jurisdictions that wish to assist with immigration enforcement with a roadmap for doing so in a judicially defensible manner.