The Court’s Stand for Federalism
WASHINGTON — By throwing out most of the anti-Latino Arizona immigration law and neutering the rest, the Supreme Court struck a rare blow for fairness and justice. Let’s hope this is the beginning of a streak.
Let’s also hope that Chief Justice John Roberts, who sided with the 5-3 majority in the Arizona case, likes the view from the liberals’ end of the bench. They could use his vote on the health care reform ruling, expected to be announced Thursday.
In a perfect world, the court would have definitively eliminated the most notorious section of the Arizona law: the requirement that police check the immigration status of anyone who is detained. Because of its chilling invocation of police-state tactics, this became known as the “papers, please” provision.
The court ruled that it is too soon to invalidate this part of the law, but significantly narrowed the measure’s scope — and practically dared Arizona officials to step out of line. “This opinion does not foreclose other pre-emption and constitutional challenges to the law as interpreted and applied after it goes into effect,” the court wrote. Translation: We’ll be watching closely.
Other parts of the law were less publicized but equally onerous and un-American. These provisions, happily, are now history.
Even more gratifying is the court’s reinforcement of an obvious principle: The federal government has the responsibility for setting immigration policy, not the states. We do not need — and, thanks to this ruling, will not have — 50 sets of laws specifying who gets to live in this country and who doesn’t.
The Arizona law sought to make it a state crime to fail to have proper immigration papers; in other words, failing to produce the right documents when asked could have subjected a person not just to deportation but to criminal penalties. The court ruled that this was pre-empted by federal law, which imposes no such sanctions.
Arizona’s draconian statute also made it against the law for an undocumented immigrant to look for work. The court noted that existing federal law already addresses the employment issue but specifically puts the onus on employers, not workers.
It is “illegal for employers to knowingly hire, recruit, refer, or continue to employ unauthorized workers … and requires employers to verify prospective employees’ employment authorization status,” the court said. “The correct instruction to draw … is that Congress decided it would be inappropriate to impose criminal penalties on unauthorized employees.”
And in a provision that, to my thinking, was even more oppressive than “papers, please,” the Arizona statute gave police the authority to arrest anyone — without a warrant — suspected of some “public offense” that makes the person liable to deportation. The court recognized, quite logically, that this is a license for police to arrest suspected illegal immigrants indiscriminately, based solely on the possibility that they might be here without the proper documents.
As the court noted in striking down this provision, “The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed.”
The majority opinion, written by Justice Anthony Kennedy, points out something that many who seek to participate in the immigration debate fail to understand: “As a general rule, it is not a crime for a removable alien to remain present in the United States.”
That’s right. It’s not a crime for “illegal” immigrants to live and work here without the proper documents. By “here” I mean all 50 states. The United States is one country with one immigration policy, and the Supreme Court means to keep it this way.
That’s why analysts who see this as a split ruling with “something for both sides” are wrong. The Obama administration won across the board on its central contention, which is that Arizona was trying to usurp a federal prerogative. This has huge implications for the other states, such as South Carolina and Georgia, that are also trying to design their own immigration policies.
There are political implications as well. Mitt Romney, who is struggling to reduce President Obama’s huge lead among Latino voters, once referred to the Arizona law as “a model.” Romney reacted to Monday’s decision by reiterating that “each state has the duty and the right” to protect the nation’s borders.
Actually, no. Romney should read the ruling.
Eugene Robinson’s email address is eugenerobinson@washpost.com. (c) 2012, Washington Post Writers Group
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The rulings of this court should make everyone concerned on both sides of the isle.
In most all controversial cases, you know going in you have 4 that will rule upholding the lefts point of view and you have 4 ruling with the conservative point of view. Arguements before the court do not even need to take place for these 8. That leaves one justice that is making the decisions for the court.
I find it troubling when there is so little consideration given to the arguements by the 4 on each side of the issues. It doesn’t matter where you stand, it should concern everyone that the court is so closed minded and is so divided that one judge has so much say in each decision.
And given the possiblity that the next President will be nominating 2 or 3 new justices, does anyone believe the next to go on the bench will be any more open minded on issues than the ones we have today.
If Obama wins, the lefts agenda will fly through the courts, no questions ask and if Romney is elected, the rights agenda will fly through, no questions ask.
It doesn’t make me feel secure to know the court will rubber stamp anything their party will legislate.
Actually that is a bit of a reach. The Govt didn’t even try and bring up any reasons for striking down the law but Fed preemption. The court gave a pretty good smack down as to that reasoning. In the opinion it was mentioned, but they certainly didn’t “rule” on something that was never before the court.
Honestly I think Az is ahead of the game. They won on what to them was the biggest issue.
It is a crime to enter illegally, to overstay, to re enter after deportation, the list goes on.
The majority didn’t base the ruling on the federal state balance of power. I pulled this off of the SCOTUSblog,which has a number of good posts on it from different points of the political spectrum.
The bolding is mine.
They went on to discuss the section 2B part of the ruling.