Supreme Court Partially Affirms Ninth Circuit Ruling on Arizona Immigration Laws

June 25th, 2012

By Dan Miller

The Ninth Circuit had ruled that Arizona had improperly preempted Federal immigration law.

(The Court will probably release its ObamaCare decision on Thursday.)


I am The Master and will enforce or ignore whatever laws I wish.

The Supreme Court today affirmed, in part, five to three (Kagan, J. not participating) the Ninth Circuit decision that Arizona had improperly preempted Federal immigration laws.  As noted here,

Today’s decision leaves the most controversial provision of SB 1070 in place, which is the section empowering local police to inquire about immigration status. That is the section that … Georgia and Alabama and other states have emulated in their immigration laws. The sections struck down had to do with banning illegal aliens from seeking work, mandating immigrants to carry their visas with them at all times, and penalizing employers of illegal aliens. The court ruled that existing federal laws already deal with those issues. The vote to uphold Section 2B was 8-0 with Kagan recusing herself.

Arizona Governor Brewer

hailed the decision as a victory for supporters of tough immigration enforcement.

“Today’s decision by the U.S. Supreme Court is a victory for the rule of law. It is also a victory for the 10th Amendment and all Americans who believe in the inherent right and responsibility of states to defend their citizens,” Brewer said in written statement. “After more than two years of legal challenges, the heart of SB 1070 can now be implemented in accordance with the U.S. Constitution.” SB 1070 is the official name of the Arizona law.

The reasons for the Arizona immigration laws, which the Ninth Circuit in United States v. State of Arizona had held uniformly preempted by Federal immigration law, are well set forth in a concurring/dissenting opinion by Ninth Circuit Judge Bey. I wrote about it here, providing some pertinent quotes from Judge Bea.

The majority also finds that state officers reporting illegal aliens to federal officers, Arizona would interfere with ICE’s [U.S. Immigration and Customs Enforcement] “priorities and strategies.” It is only by speaking in such important-sounding abstractions — “priorities and strategies” — that such an argument can be made palatable to the unquestioning. How can simply informing federal authorities of the presence of an illegal alien, which represents the full extent of Section 2(B)’s limited scope of state-federal interaction, possibly interfere with federal priorities and strategies — unless such priorities and strategies are to avoid learning of the presence of illegal aliens? What would we say to a fire station which told its community not to report fires because such information would interfere with the fire station’s “priorities and strategies” for detecting and extinguishing fires? …

The majority’s arguments regarding how any of the state officers’ actions spelled out in Section 2(B) could interfere with federal immigration enforcement is consistent with only one premise: the complaining federal authorities do not want to enforce the immigration laws regarding the presence of illegal aliens, and do not want any help from the state of Arizona that would pressure federal officers to have to enforce those immigration laws. With respect, regardless what may be the intent of the Executive, I cannot accept this premise as accurately expressing the intent of Congress. (Emphasis in original, internal citations omitted.)

Section 2(B) is not Federally preempted.

As the Supreme Court observed today, Section 2(B) of S.B. 1070

requires state officers to make a “reasonable attempt … to determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” The law also provides that “[a]ny person who is arrested shall have the person’s immigration status determined before the person is released.”  The accepted way to perform these status checks is to contact ICE, which maintains a database of immigration records. (I added the italic emphasis; internal citations omitted.)

Three limits are built into the state provision. First, a detainee is presumed not to be an alien unlawfully present in the United States if he or she provides a valid Arizona driver’s license or similar identification. Second, officers “may not consider race, color or national origin … except to the extent permitted by the United States [and] Arizona Constitution[s].”  Third, the provisions must be “implemented in a manner consistent with federal law regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.” (Internal citations omitted.)

After providing some guidance as to how Section 2(B) can be enforced to avoid Federal preemption (i.e., by adhering to the Arizona statute) the Court noted:

The nature and timing of this case counsel caution in evaluating the validity of §2(B). The Federal Government has brought suit against a sovereign State to challenge the provision even before the law has gone into effect. There is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2(B) will be construed in a way that creates a conflict with federal law. Cf. Fox v. Washington, 236 U. S. 273, 277 (1915) (“So far as statutes fairly may be construed in such a way as to avoid doubtful constitutional questions they should be so construed; and it is to be presumed that state laws will be construed in that way by the state courts” (citation omitted)). As a result, the United States cannot prevail in its current challenge. See Huron Portland Cement Co. v. Detroit, 362 U. S. 440, 446 (1960) (“To hold otherwise would be to ignore the teaching of this Court’s decisions which enjoin seeking out conflicts between state and federal regulation where none clearly exists”). This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.

The Supreme Court recognized Arizona’s abnormally bad illegal immigrant situation.

As the majority observed,

The pervasiveness of federal regulation does not diminish the importance of immigration policy to the States. Arizona bears many of the consequences of unlawful immigration. Hundreds of thousands of deportable aliens are apprehended in Arizona each year. Dept. of Homeland Security, Office of Immigration Statistics, 2010 Yearbook of Immigration Statistics 93 (2011) (Table 35). Unauthorized aliens who remain in the State comprise, by one estimate, almost six percent of the population. See Passel & Cohn, Pew Hispanic Center, U. S. Unauthorized Immigration Flows Are Down Sharply Since Mid-Decade 3(2010). And in the State’s most populous county, these aliens are reported to be responsible for a disproportionate share of serious crime. See, e.g., Camarota & Vaughan, Center for Immigration Studies, Immigration and Crime: Assessing a Conflicted Situation 16 (2009) (Table 3) (estimating that unauthorized aliens comprise 8.9% of the population and are responsible for 21.8% of the felonies in Maricopa County, which includes Phoenix).

Statistics alone do not capture the full extent of Arizona’s concerns. Accounts in the record suggest there is an“epidemic of crime, safety risks, serious property damage, and environmental problems” associated with the influx of illegal migration across private land near the Mexican border. Brief for Petitioners 6. Phoenix is a major city of the United States, yet signs along an interstate highway30 miles to the south warn the public to stay away. One reads, “DANGER—PUBLIC WARNING—TRAVEL NOT RECOMMENDED / Active Drug and Human Smuggling Area / Visitors May Encounter Armed Criminals and Smuggling Vehicles Traveling at High Rates of Speed.”App. 170; see also Brief for Petitioners 5–6. The problems posed to the State by illegal immigration must not be underestimated. These concerns are the background for the formal legal analysis that follows. The issue is whether, under preemption principles, federal law permits Arizona to implement the state-law provisions in dispute.

The fate of Section 2(B) can eventually be determined by (a) how the Arizona state courts construe it and/or (b) by challenges in Federal court to the manner in which it is hereafter applied.

Partial Dissents and Concurrences

Mr. Justice Scalia concurred as to Section 2(B) and dissented as to the remainder stating,

The United States is an indivisible “Union of sovereign States.”  Today’s opinion, approving virtually all of the Ninth Circuit’s injunction against enforcement of the four challenged provisions of Arizona’s law, deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there. Neither the Constitution itself nor even any law passed by Congress supports this result. I dissent. (Internal citations omitted.)

Section 5(C), rejected by the Court, provides,

It is unlawful for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state.

Justice Scalia disagreed with the Majority that for Arizona to enforce Section 5(c) would be inconsistent with the Federal power to allocate Federal resources,

The brief for the Government in this case asserted that “the Executive Branch’s ability to exercise discretion and set priorities is particularly important because of the need to allocate scarce enforcement resources wisely.” Of course there is no reason why the Federal Executive’s need to allocate its scarce enforcement resources should disable Arizona from devoting its resources to illegal immigration in Arizona that in its view the Federal Executive has given short shrift. Despite Congress’s prescription that “the immigration laws of the United States should be enforced vigorously and uniformly,” Arizona asserts without contradiction and with supporting citations:

“[I]n the last decade federal enforcement efforts have focused primarily on areas in California and Texas, leaving Arizona’s border to suffer from comparative neglect. The result has been the funneling of an increasing tide of illegal border crossings into Arizona. Indeed, over the past decade, over a third of the Nation’s illegal border crossings occurred in Arizona.”

Must Arizona’s ability to protect its borders yield to the reality that Congress has provided inadequate funding for federal enforcement—or, even worse, to the Executive’s unwise targeting of that funding? (Internal citations omitted.)

Justice Scalia also commented in that connection on the Obama Administration’s unilateral decision to implement its own nightmare dream act:

 It has become clear that federal enforcement priorities—in the sense of priorities based on the need to allocate “scarce enforcement resources”—is not the problem here. After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants under the age of 30. If an individual unlawfully present in the United States … [under specified conditions] then U. S. immigration officials have been directed to “defe[r] action” against such individual “for a period of two years, subject to renewal.”6 The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conducting as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonenforcement program envisions, will necessarily be deducted from immigration enforcement. The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administration’s proposed revision of the Immigration Act.7 Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.

The Court opinion’s looming specter of inutterable horror—“[i]f §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations,” ante, at 10—seems to me not so horrible and even less looming. But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Government that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws? …

As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that gave rise to the suit. Arizona bears the brunt of the country’s illegal immigration problem. 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. Thousands of Arizona’s estimated 400,000 illegal immigrants—including not just children but men and women under 30—are now assured immunity from enforcement, and will be able to compete openly with Arizona citizens for employment.

Arizona has moved to protect its sovereignty—not in contradiction of federal law, but in complete compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State. I dissent. (Emphasis added, internal citations omitted.)

Justice Thomas in a separate opinion agreed with Justice Scalia. Justice Alito in his separate opinion agreed with the Majority as to Section 2(B) as had Justices Scalia and Thomas.  He also agreed with the majority as to Section 3 (making failure to comply with federal alien registration requirements a state misdemeanor) but agreed with Justices Scalia and Thomas as to Sections 5(C) ( making it a misdemeanor for an unauthorized alien to seek or engage in work in the State) and 6 (authorizes officers to arrest without a warrant a person “the officer has probable cause to believe … has committed any public offense that makes the person removable from the United States).

As things now stand, Arizona can continue to enforce Section 2(B) and will presumably do so consistently with the caveats presented in the majority opinion. The remainder of her immigration statues are dead unless Congress acts explicitly to permit States to respond to their differing illegal immigration problems.  The States need such Congressional action if they are to resume their proper place in our form of government.

I agree substantially with the separate opinions of Justices Scalia and Alito. The Congress gave the Executive Branch authority to enforce Federal immigration laws enacted by the Congress, not the discretion to refuse to enforce them for its own transitory political purposes as it has done.

UPDATE: President Obama has suspended agreements with the Arizona police and directed the Homeland InSecurity Department “to decline many of the calls reporting illegal immigrants that the Homeland Security Department may get from Arizona police.”

Administration officials, speaking on condition they not be named, told reporters they expect to see an increase in the number of calls they get from Arizona police — but that won’t change President Obama’s decision to limit whom the government actually tries to detain and deport.

“We will not be issuing detainers on individuals unless they clearly meet our defined priorities,” one official said in a telephone briefing.

The official said that despite the increased number of calls, which presumably means more illegal immigrants being reported, the Homeland Security Department is unlikely to detain a significantly higher number of people and won’t be boosting personnel to handle the new calls.

That’s a pretty how-DE-do. As noted here,

This is a political maneuver designed to punish Arizona, which is already reeling from the lawlessness on its border with Mexico. It also tells us that the administration has given up on winning Arizona, which until recently was considered a swing state, this fall. Obama has written it off, and is now going Soviet on it to make it an example to others. He is essentially kicking Arizona out of whatever is left of the federal government’s border enforcement, declaring to smugglers and traffickers that Arizona is very much on its own. The sucker punch comes when police enforce Section 2B of 1070 and get the state sued again. That’s likely to put the law back on hold, giving the green light to anyone who wants to sneak into Arizona from Mexico for any reason whatsoever.

Oh well. I guess that if President Obama can pick and choose what Federal laws to enforce he can decide which to obey as well.

(This article was also posted at Dan Miller’s Blog.)

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