In a mixed decision, the U.S. Supreme Court has struck down key provisions of Arizona's strict immigration law but kept in place its most controversial part, the so-called "show-me–your-papers" provision. The 5-3 decision warned, however, that the court could ultimately strike down that provision, too.
Invalidated were two provisions that made it a crime for an illegal immigrant to seek work or fail to register with the federal government. Also invalidated was a portion of the law that allowed state and local law enforcement officers to arrest anyone based solely on the suspicion that the individual was in the country illegally.
All of these provisions conflict with the federal immigration law passed in 1986, the court said. Since Congress had passed its own registration, work authorization and arrest procedures, the court said, states were not free to make their own rules in those areas.
In contrast, the court said, the show-me-your-papers provision did not, on its face, conflict with federal law. The provision requires state and local law enforcement officers, upon reasonable suspicion, to check the immigration status of anyone stopped for any crime, no matter how minor.
Writing for the court majority, Justice Anthony Kennedy explained that Congress had done nothing to bar states from "communicating" with federal immigration authorities. Indeed, he said, Congress "has encouraged the sharing of information about possible immigration violations." This part of the Arizona law, then, was consistent with federal immigration law.
But in a clear warning shot across the bow, the court emphasized that its ruling could change depending on how the law is actually enforced on the ground. Justice Kennedy suggested there would be clear constitutional problems if the law were used to target racial or ethnic minorities, or to detain people for an unreasonable period of time while checking their immigration status.
For now, though, the court said it was willing to wait and see what happens.
"At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume" that the provision conflicts with federal law, Kennedy wrote. But he emphasized that the opinion "does not foreclose" other constitutional challenges to the law, once it has gone into effect.
Indeed, Attorney General Eric Holder emphasized that the Arizona law "is not a license to engage in racial profiling," and said the Justice Department would "closely monitor the impact" of the law.
Joining Justice Kennedy in the majority were Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Steven Breyer and Sonia Sotomayor. Justice Elena Kagan was recused because she had worked on the case when she served as the solicitor general in the Obama administration prior to her appointment to the court.
Reactions To Ruling
Arizona Gov. Jan Brewer proclaimed the decision a victory for her state, and said enforcement of the show-me-your-papers provision would begin immediately. But others saw it as a far more mixed bag. Kevin Appleby, the director of migration policy at the United States Conference of Catholic Bishops, calls the decision a "strong affirmation of the federal government's role in regulating immigration." And its message to states is clear, he says: "Be careful about legislating in this area."
In a statement, President Obama said the decision "makes unmistakably clear" the need for Congress to pass comprehensive immigration reform. "A patchwork of state laws is not a solution to our broken immigration system — it's part of the problem," he said.
James Ziglar, who headed the Immigration and Naturalization Service under President George W. Bush, agrees. "I think the court was basically telling these folks — whether it's Arizona or anyplace else — that we're watching."
Lucas Guttentag, a Yale Law School professor and immigration expert, described the opinion as "a very significant rejection of the central underpinning of Arizona's law."
"Arizona's central claim was that the states are allowed to enact their own immigration crimes, their own immigration penalties and their own immigration enforcement schemes," he says. "And, I think, all of those arguments have been rejected by the Supreme Court."
But Paul Clement, who argued the case in the Supreme Court on behalf of Arizona, takes a different view. "The central provision of the law was not only upheld, but the pre-emption argument against it was unanimously rejected by the Supreme Court," he says.
The decision could spur congressional action, Ziglar says. "I think there's a pretty clear message to Congress that it's time to act and fix a pretty broken system," he says.
But congressional action would not necessarily put an end to state laws like Arizona's. As John Eastman, a law professor who filed a brief on behalf of several Republican legislators, explains, Congress could simply agree to allow states to join the federal government in enforcing immigration laws. That way, there would be no conflict between state and federal laws. If Congress were to explicitly state its intention to allow state immigration laws, then "the court would be bound to follow that statutory clarification," he adds.
Overall, though, the court ruled that it is the federal government that has primary power over immigration policy. In a passage that seemed to refer to the Obama administration's new policy suspending deportation for law-abiding illegal immigrants who were brought here as children, Justice Kennedy emphasized that the executive branch has the power to set priorities in immigration enforcement. Illegal immigrants trying to support their families, Kennedy noted, "pose less danger than alien smugglers or aliens who commit a serious crime." And he observed that individual cases turn on many factors, including whether a person was brought here by his parents as a child or whether he served honorably in the military.
Three justices, Antonin Scalia, Clarence Thomas and Samuel Alito, all filed dissenting opinions.
Justice Scalia delivered a rousing oral dissent from the bench. He explicitly singled out the new Obama administration policy on suspended deportations. "Thousands of Arizona's estimated 400,000 illegal immigrations — 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," Scalia wrote. The new policy, he said, is clear evidence of "a federal government that does not want to enforce the immigration laws as written," no matter how the border states may feel about it.
If the original colonies had known that they would be "at the mercy" of the federal government on immigration policy, Scalia said, they would never have entered the union in the first place.