Online symposium: Supreme Court (mostly) guts S.B. 1070

This is the first 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.  

This is a nominally split decision, but the Court’s opinion in Arizona v. United States is mostly a victory for S.B. 1070’s opponents.  Although the Court upheld the “check your papers” provision, it struck down three others that would have had much greater impact on the ground. Justice Kennedy’s opinion validates broad federal authority over immigration, allowing only marginal participation on the part of states. The decision will take a lot of wind out of restrictionist sails at the state level.

The result could have been predicted coming out of the oral arguments in April. More surprising is the tone, which is solicitous of state power only in passing.

The Court struck down three provisions. Section 3 would have criminalized the failure to carry federal registration documents. Section 5(c) looked to penalize aliens who engaged in unauthorized employment. Section 6 would have allowed warrantless arrests of suspected undocumented aliens. The Court gave the back of the hand to each.

It did so by situating immigration as a matter of national foreign relations, a context in which tolerance for state activity is low.  “It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States,” writes Justice Kennedy. “Decisions of this nature touch on foreign relations and must be made with one voice.”  The foreign relations framing allowed the Court to apply a relaxed threshold for trumping the state law.

The decision here continues a tradition of immigration law exceptionalism.  The Court refused to use the case to advance its federalism agenda, which has been increasingly protective of state power.

Restrictionists may cheer about the Court’s holding on Section 2(B), which mandates that state law enforcement officials make a determination of immigration status where there is reasonable suspicion to believe that an alien is illegally present in the United States.  That provision got the lion’s share of media attention leading up to the decision, and the early headlines are playing up this part of the bottom line. On this score the decision shows some tolerance for state-level action, not a foregone conclusion from the precedents.

But Section 2(B) lacks teeth: it may require state law enforcement to make immigration status determinations, but there isn’t much that the state can do with determinations once made.  The state can pass the information along to federal immigration authorities, who are then free to do nothing. In other words, Section 2(B) won’t result in anybody being deported. Justice Kennedy was, moreover, careful to keep the door open to subsequent challenges of Section 2(B) to the extent that it’s applied in an unreasonable fashion – if it were used, for instance, to justify prolonged detentions. By implementing Section 2(B), the state will buy itself little more than another round in court as immigrant advocates inevitably press civil rights challenges on an “as applied” basis.

Now that the Supreme Court has spoken, eyes will shift back to the political landscape.  Supporters of S.B. 1070 and restrictionist state laws have a strategic choice to make: do they claim victory on Section 2(B) and try to secure adoption of similar measures in other states, or do they concede defeat and redouble their efforts to win an immigration crackdown in Washington? The decision will cramp restrictionist efforts in state capitals, on top of growing headwinds from business constituencies. Washington presents other sorts of obstacles, of course. Perhaps this is the worst of both worlds for S.B. 1070’s proponents: no clear defeat to use as a rallying call with Congress, no clear victory to secure broad laws in other states.

Peter Spiro teaches law at Temple University. He blogs at Opinio Juris.