Court Upholds 'Show Me Your Papers' In Arizona

David Savage, Supreme Court correspondent, Los Angeles Times and Chicago Tribune

The Supreme Court has delivered a split ruling on Arizona's immigration law, striking down several key elements but upholding the "show me your papers" provision. The controversial provision allows local police to check the immigration status of people they stop in the normal course of their duties.

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NEAL CONAN, HOST:

This is TALK OF THE NATION. I'm Neal Conan. We're broadcasting today from the Aspen Environment Forum, and we'll focus on the effects of climate change for most of this hour, but we begin with one of the major decisions of this Supreme Court term.

The Justice Department took Arizona's tough immigration law to court shortly after it passed. Since then, several other states adopted similar legislation, necessary, they, said, because the federal government did not do enough to combat illegal immigration.

Today, the court struck down three key elements of Arizona's law but upheld the controversial show me your papers provision, which allows local police to check the immigration status of people they stop in the normal course of their activities.

David Savage, Supreme Court correspondent for the Los Angeles Times and Chicago Tribune, joins us from his office in Washington. And David, always nice to have you on the program.

DAVID SAVAGE: Hi, Neal.

CONAN: And what were the provisions of the court of the law that were struck down?

SAVAGE: Well, it's essentially the provisions that gave the police sort of a separate power to arrest and hold somebody because you're an illegal immigrant. For example if an illegal immigrant was looking for work, they could be arrested and held, violating Arizona law.

There was a provision that said if you're not carrying your registration papers, that's a violation of Arizona law. And there was a third provision that said police can arrest persons that they think have committed crimes that would warrant immigration.

And in all three of those, the court seemed to say that this is going beyond just helping out the federal government in enforcing. This is the state getting into its own enforcement and sort of holding people for violating Arizona's immigration law.

And the notion was they can't do that. A state can't have its own sort of immigration - set of immigration laws.

CONAN: The one and perhaps most controversial part of the law, the show-me-your-papers, though, that was upheld?

SAVAGE: Preliminarily. You know, it was struck down on a preliminary injunction. There's still a lawsuit pending out in Arizona, and the court said for now, we're going to allow this to go forward with a couple understandings. And the understanding is that, yes, if a policeman stops someone in Arizona and, say, they don't have a driver's license, and the officer thinks this person may be here illegally, the officer can then check with the federal immigration authorities and say, do you want us to hold this person, or do you want to come and get this person?

If the federal government says no, that's the end of the matter. Justice Kennedy said this verification process should not result in prolonged detention. So he seemed to say if it's just a check and a notification, that's OK. If it's jailing somebody and holding them because Arizona thinks they're illegal, that's not OK.

CONAN: And you said preliminarily, so this is clearly not the last word on that.

SAVAGE: That's right. Justice Kennedy said there's some - we don't exactly know how this law is going to work in practice and how it's going to be enforced. So we're not going to block it for now. We're going to send it back to Phoenix, but we're not saying that it's absolutely OK, that if it actually results in, for example, holding people in prison for days - jail in days - because Arizona thinks they're illegal immigrants, that would be a different matter.

So they're allowing it to go into effect but also sort of reserving the right to take another look down the road.

CONAN: There were also those who argued that enforcing that provision would amount to racial profiling, and does this say, well, it might, or it might not, we can't tell, it hasn't happened yet?

SAVAGE: Yes, it says we can't tell, and as you remember from the argument, Neal, John Roberts started off by saying: Am I correct - to the solicitor general - this has nothing to do with racial profiling, that's another lawsuit. And he said, yes, that's another lawsuit. So they didn't really sound off on that at all, but that issue is still alive in the courts in Arizona.

A number of the civil liberties groups are worried about this part of the decision, and they are all saying we're going to continue to pursue that issue in the courts in Arizona.

CONAN: The president said today in a statement he was pleased by the - that the court struck down key provisions of the law but added: I remain concerned about the practical impact of the remaining provision of the Arizona law, which requires local law enforcement officials to check the immigration status of anyone they even suspect to be here illegally.

So this is for the president and his critics a split decision?

SAVAGE: Yes, that's right, it's sort of a mixed - I actually thought the administration - if you look at the language of the opinion and the three provisions struck down, one allowed to go into effect, I thought the administration did a little better than I thought they were going to do after the argument.

You could tell at the argument that John Roberts was thinking that these provisions are different. Some go too far, 'cause they create these separate state crimes, some don't. And so you knew there - I sort of thought they were going to split the middle, and it's a mixed decision. But I'd say the federal government actually came out of this better than you might have thought when this case reached the Supreme Court.

CONAN: And interesting splits amongst the justices on the various parts. The three parts that were struck down, as I understand, was a 5-3 decision, and people will note even those who are as arithmetically challenged as journalists, that does not add up to nine.

SAVAGE: That's true. Elena Kagan stayed out of this case because she was the solicitor general when the issue was first raised, and so her rule has been that if she did any legal work at all on a case, she stayed out of it. So it was just an eight-member court.

CONAN: And then it was a 5-3, but as you suggest, the chief justice voting with the majority in this case.

SAVAGE: Yes, that's - John Roberts is the one to watch in a lot of these big cases because he's the key person, and you could tell he really led the argument at this, and I just finished reading the opinion again. It's a very fine, lawyerly job of going through each of these provisions and sort of saying here's what one side said, here's what the other side says, and saying does this really conflict with federal law, does it sort of go off in a separate way.

And three times they said yes it does, and in the fourth one, they said, well, no, it really doesn't if it's just simply a matter of asking questions and then notifying the federal immigration agents. That doesn't really conflict with federal law, so we can allow that to go forward.

CONAN: And on that part, the show me your papers part, that was a unanimous verdict.

SAVAGE: That it - well, that's right because the three conservative justices would have upheld all the laws. So they could agree with the idea that the liberal side and John Roberts and Justice Kennedy got it right on that provision. So yes, all of them were in agreement on that point.

CONAN: Now, several other states have adopted similar legislation. Does this decision affect them?

SAVAGE: Yes, although you're probably going to ask me and how so.

(LAUGHTER)

CONAN: Probably.

SAVAGE: The - it sure looks like that, yes, this decision will affect all those other states. There are some pending lawsuits in the circuit courts. And I would read it to say that anytime states like Alabama have gone pretty far in sort of giving their police real authority to arrest and hold somebody or really sort of creating separate state crimes for illegal immigrants, all those provisions are going to be struck down.

And as I say, if it's just a matter of we're trying - we the state are trying to be cooperative with the federal government, maybe that's OK. But I read this decision to say that states really have very little authority to enforce immigration on their own.

CONAN: This also comes in the immediate aftermath of President Obama's recent decision to not enforce the law in certain respects against those who might qualify for the un-enacted DREAM Act, the young illegal immigrants who are students or in the military. Did that come up in the decision at all?

SAVAGE: No, no, and I think my guess is that a good part of this was done before the president made that announcement. It is the case - immigration law is so complicated, and so much of it is unclear that it certainly argues, as Obama said today, that this is something that Congress should go back and try to come up with some clear and more comprehensive immigration reform law, but maybe, as you know, that's for some future Congress.

CONAN: The critics, those who were in the minority on the 5 to 3 part, those included Justices Scalia and Thomas. Did either of them say anything interesting in their dissent?

SAVAGE: Justice Scalia said a lot that was interesting. He said, here's a quote. "As a sovereign, Arizona has the inherent power to exclude persons from its territory subject only to limitations written into law by Congress." He took a very strong view - he mentioned it at the argument - that a sovereign state has the sort of authority on its own to arrest or kick out unwanted people.

I had never heard that before. I didn't think states had that power. But Justice Scalia wrote a very strong dissent, sort of arguing for this is a sovereign right of Arizona, and we the Supreme Court shouldn't step in and block what they're doing.

Justice Alito wrote a dissent that was more tailored to - the federal immigration law does have a passage that says states may cooperate in the apprehension or identification of illegal immigrants, and Justice Alito said if you just read the federal law, you might have thought most of these provisions could stand. So his was a more modulated dissent.

CONAN: And this also, of course, comes in the course of a national election. Any idea which side may be energized by this particular ruling?

SAVAGE: Boy, Neal, your guess on that one is as good as mine. My impression that President Obama - several things he's done certainly would have energized the Latinos and some younger people on the immigration issue, and my impression is there's some - another bloc of voters who are very troubled by illegal immigrants.

And Lamar Smith, the congressman and head of the Judiciary Committee, has a statement basically saying this is why we need a new, stronger Congress to pass tougher immigration laws here in Washington, thanks to - these kind of decisions show we need stronger laws out of Washington.

CONAN: And finally, this is, I gather, the second-to-last day that the court is going to be issuing opinions from this term. So that means health care comes up Thursday, right?

SAVAGE: Yes, that's right, the last day of the term. They usually tell us the day before the last decisions. We actually thought they might do something on Tuesday and Wednesday, but chief justice said the - we will meet on Thursday, and the final decisions of the term are coming then, so stay tuned for health care on Thursday morning.

CONAN: David Savage, we'll talk to you then. Thanks very much for your time.

SAVAGE: Thanks, Neal.

CONAN: David Savage, Supreme Court correspondent for the Los Angeles Times and Chicago Tribune joined us by phone from Washington, D.C., and of course stay tuned for more on today's decisions, not just Arizona but some other interesting ones, as well, later today on ALL THINGS CONSIDERED.

As we mentioned, we're in Aspen today at the Environment Forum, and as the ice melts and trees wither, we'll talk with witnesses to the environmental changes happening right now. Call and tell us what changes do you see where you live? 800-989-8255. Email us, talk@npr.org. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

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