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Opinion recap: Immigration and judicial styles


The Supreme Court’s ruling on the power of states to pass laws aimed at driving undocumented immigrants to leave was bound to become a political topic in a presidential campaign year, when control of America’s borders is a clear point of division between the candidates.   Within the Court itself, the case also was bound to cause controversy, and it did.  But the final decision also showed deeply contrasting judicial styles: three of the four opinions were bland but workmanlike discussions of legal principles.  One of those three opinions was controlling, and went far toward excluding states from having their own deportation policies.

The fourth opinion, however, was just short of a political talking-points document, essentially choosing up sides in this year’s presidential campaign — indeed, it took sides in a week-old development in the ongoing political controversy over how President Obama is using his powers.  That opinion, by Justice Antonin Scalia, reached far outside the record of the case to find reasons to denounce the Obama Administration for supposedly not even wanting “to enforce the immigration laws as written.”  Even for a judge who wears his sentiments on the sleeve of his robe, this was remarkable, and not one of his colleagues would sign on to those remarks.

This was a case decided by an eight-Justice Court, because Justice Elena Kagan took herself out of the case, apparently because of prior involvement with the issues while U.S. Solicitor General.  And it avoided becoming a 4-4 split, which would have set no precedent, only because Chief Justice John G. Roberts, Jr., cast what could be considered a deciding vote rather than join fellow conservatives in even partial dissent.  The vote, in the main, was 5-3, with some variation.

The outcome thus was declared in the opinion written by Justice Anthony M. Kennedy.  In sum, that opinion barred Arizona from enforcing three provisions of its controversial anti-immigrant law, S.B. 1070, and put off a constitutional reckoning on a fourth provision.  But beyond those bare conclusions, the Kennedy opinion was a strong victory for the notion that immigration policy, under the Constitution and federal laws, is for the federal government, not for the individual states, including those on the borders most affected by illegal entry.

Here is what the Kennedy opinion accomplished:

First, as an overall proposition, the Court reaffirmed that the national government is the “single sovereign” in charge of “a comprehensive and unified system to keep track of aliens within the nation’s borders.”  (That was directly contradictory to an argument by Justice Scalia, for himself alone, that states have the same power as the national government does to use their borders as barriers to entry of unwanted individuals.)

Second, the Court made clear that states are barred from adopting virtually any provision that seeks to establish a state-level program requiring undocumented immigrants to sign in officially as non-citizens.  That broader conclusion is what nullified the specific Arizona provision (Section 3) making it a crime to be in Arizona without legal immigration papers.

Third, the ruling concluded that states may not set up their own regime to close off jobs within their borders to undocumented immigrants. That broad declaration led to rejection of a specific Arizona provision (Section 5(C)) that made it a crime for a non-citizen illegally in the state to apply for a job, or work at one.

Fourth, the decision forbids states to set up their own policies that would lead to deportation of undocumented immigrants who have committed crimes, unless the federal government explicitly asks for such help.  The wide conclusion undermined a specific Arizona provision (Section 6) that directs state police to arrest — without a warrant — anyone believed to have committed any crime that would lead to deportation.

Those four parts of the Kennedy opinion could have an immediate impact on the validity of other states’ laws that imitate or go beyond Arizona’s attempt to carry out a program of “attrition through enforcement,” as Arizona labeled its objective of making life so uncomfortable for undocumented immigrants that they would opt to leave the state.  Some other states’ laws, like Alabama’s, go beyond what Arizona has done, and some of those, too, might be vulnerable because of some of the sweeping statements Justice Kennedy made about the breadth of federal control of immigration policy.

The technical method that the majority applied to nullify the three provisions of the Arizona law was the doctrine of preemption — that is, when a federal law occupies a field, states may not intrude, or when a federal program and a state program cannot exist side by side without conflicting, the state must yield.

The one provision of S.B. 1070 that the Court did not find preempted — and thus, for the time being, left on Arizona’s statute books — is perhaps the most controversial provision of the entire state law.  That is Section 2(B), requiring police — whenever they make any arrest for any suspected violation of any law and have some reason to think the individual is an undocumented immigrant — to hold that individual until they can check the legality of their presence in this country.

The Court’s opinion did not address a constitutional argument that has been leveled against Section 2(B) — that is, that it authorizes police to engage in “racial profiling,” arresting individuals solely because they look like an immigrant who might be without papers.   The federal government did not make that challenge in this case, so it was beyond the scope of what the Court considered.  Justice Kennedy’s opinion dealt with it only on the question of whether it was preempted.

Kennedy noted that this provision has not yet gone into effect and has not been given any interpretation by state courts as to its scope.  Thus, Kennedy wrote, it may be that the provision in practical operation will not give rise to any of the potential problems that the challengers have seen in it.  Among those problems is that the power to detain may be used unconstitutionally because it was not justified, or was too lengthy, and that it would lead to the detention of individuals by state officers without any federal supervision of the immigration-related justification for holding them.   State courts might find that those problems will not arise, because Section 2(B) may be interpreted narrowly.

If that provision, in practice, does no more than require a state police officer to check with federal officials about immigration status, during an authorized and legal detention, it probably would survive preemption, Kennedy wrote.

The opinion made clear that the ruling was not intended to resolve any other constitutional challenges that have been or may be leveled against S.B. 1070.  In fact, there are already ongoing proceedings in lower courts in which civil rights groups are challenging Section 2(B) as authorizing racial discrimination, on the theory of racial profiling.   Kennedy also said that the ruling does not bar any “as-applied” challenges that might be made to the law after it actually goes into effect.

Joining in the Kennedy opinion, in addition to the Chief Justice, were Justices Stephen G. Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor.

Justice Clarence Thomas agreed that none of the four challenged provisions was in conflict with federal law, so none of them were preempted.  Justice Samuel A. Alito, Jr., agreed with the majority that the provision making it a crime to be in Arizona without registration papers was invalid as preempted, and went along with the conclusion that the check-the-status provision is not preempted, but concluded that the other two provisions that Kennedy found preempted could stand (barring work for undocumented immigrants, and allowing arrests on suspicion of having committed a crime that could lead to deportation).

Justice Scalia was the only one of the Justices not joining the Kennedy opinion to announce his dissent orally from the bench.   He argued that all of the four provisions were valid and not preempted, and did so for two basic reasons.  One was an argument drawn mainly from history, and stated at length, that states are true “sovereigns” — just as the federal government is — in their authority to decide who may enter their borders.  That part of his opinion found in states a residual measure of sovereignty that went far beyond what any of his colleagues have concluded in modern opinions dealing with the role of the states in the scheme of American government.

The sovereignty argument, though passionately stated by Scalia, contained no hints of the political implications that, in fact, saturated the other reason that he objected to the Kennedy opinion.  This was his claim that the federal government in general — and the Obama Administration in particular — has made an explicit choice not to enforce the nation’s immigration laws, leaving the states to face virtually alone the threat of an invading horde of crime-prone and services-consuming immigrants.

While some past Supreme Court opinions, in immigration cases, have commented negatively about lax immigration enforcement, not one in memory matched the intensity of Justice Scalia’s complaint.  “Are the sovereign states,” he asked, “at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?”

But what leaped out of the Scalia opinion — and, especially, from his forceful reading from it from the bench — was his criticism of the just-announced policy of the Obama Administration to suspend the deportation of young people who had come to the U.S. as children, had remained law-abiding, and had entered college or the military.   Citing materials taken from the Internet as recently as last Friday, the Scalia opinion explicitly sought to contradict the President’s claims, and claims of his aides, that this policy of deferring potential deportation was designed to make sure that immigration enforcement resources were saved for deporting criminals and others believed threatening to public safety.

He cited figures that this policy would not, in fact, save resources, because it would take more of those resources to do the background check necessary to give some 1.4 million young immigrants the chance to get a deferral of potential deportation.  Scalia called this “the Executive’s unwise targeting” of the use of federal funds to enforce immigration laws.

Plain English summary

Arizona had taken the lead, in 2010, in a renewed effort by states to adopt policies that would control many of the aspects of the daily lives of hundreds of thousands of immigrants who had entered the U.S. without legal permission to do so.   The law has been challenged by various civil rights groups as a form of racial bias, but that was not an issue before the Supreme Court.  The law also had been challenged by the federal government as unconstitutional, on the theory that Arizona was trying to move in on the federal government’s superior power to enforce federal immigration laws.   That is the challenge that the Court decided Thursday.  In the end, by a vote of 5-3, the Court nullified three of the four provisions because they either operated in areas solely controlled by federal policy, or they interfered with federal enforcement efforts.  Nullified were sections making it a crime to be in Arizona without legal papers, making it a crime to apply for or get a job in the state, or allowing police to arrest individuals who had committed crimes that could lead to their deportation.   The Court left intact — but subject to later challenges in lower courts — a provision requiring police to arrest and hold anyone they believe has committed a crime and whom they think is in the country illegally, and holding them until their immigration status could be checked with federal officials.

Recommended Citation: Lyle Denniston, Opinion recap: Immigration and judicial styles, SCOTUSblog (Jun. 25, 2012, 7:03 PM),