- The Washington Times - Monday, June 25, 2012

The Supreme Court on Monday struck down most of Arizona’s tough immigration law as an unlawful infringement on federal power, but upheld what backers called the “heart” of the law, which lets police stop and question the immigration status of those they suspect are in the country illegally.

In the complex ruling, all eight justices said police can question the legal status of those they stop, but a 5-3 majority struck down Arizona’s attempts to create state penalties that seek to mimic or, in one case, go beyond the federal law.

“The sound exercise of national power over immigration depends on the nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse,” Justice Anthony M. Kennedy wrote for the majority. “Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the state may not pursue policies that undermine federal law.”

The decision was announced a little more than a week after President Obama said he would stop deporting most illegal immigrants brought to the U.S. while they were minors, a move that, coupled with Monday’s ruling, marks a seismic shift in the immigration debate and forces it to the forefront of the national agenda.

Arizona Gov. Jan Brewer, a Republican, said she will move quickly to begin letting police enforce the immigration status checks, but the Obama administration said it will issue guidance to federal immigration authorities telling them not to bother picking up illegal immigrants unless they have serious crimes on their records or are otherwise considered priorities for deportation.

“What this decision makes unmistakably clear is that Congress must act on comprehensive immigration reform,” Mr. Obama said in a statement. “A patchwork of state laws is not a solution to our broken immigration system — it’s part of the problem.”

Both sides in the debate said the decision underscores the need for a broad federal solution to the estimated 11 million illegal immigrants now in the U.S. — but Mitt Romney, Mr. Obama’s likely Republican opponent in the November general election, said he still sees a bigger role for states on immigration even in light of the court’s ruling.

“I believe that each state has the duty — and the right — to secure our borders and preserve the rule of law, particularly when the federal government has failed to meet its responsibilities,” he said. “As candidate Obama, he promised to present an immigration plan during his first year in office. But four years later, we are still waiting.”

Congressional authority

The court majority said states cannot try to act in an area where the Constitution specifically grants powers to Congress — in this case Article I, Section 8, Clause 4, which says Congress has powers over naturalization. That has long been interpreted to mean that only the federal government can set immigration policy unless it specifically invites states to play a role.

“Permitting the state to impose its own penalties for the federal offenses here would conflict with the careful framework Congress adopted,” Justice Kennedy said in an opinion joined by Chief Justice John G. Roberts Jr. and Justices Sonia Sotomayor, Ruth Bader Ginsburg and Stephen G. Breyer.

Justices Antonin Scalia, Clarence Thomas and Samuel Anthony Alito Jr. each wrote dissents saying that while they agree that Arizona police can question legal status, the state also should be allowed to enact its own penalties when those laws are meant to work with, not against, the federal government.

Justice Elena Kagan did not take part in the ruling. She was solicitor general in the Obama administration while the law was being written.

In an opinion that delved into the state of law at the country’s founding, Justice Scalia said that when the Constitution was written, the question wasn’t whether states had power to exclude foreigners — which he said they clearly did — but rather whether the federal government had that power as well.

Over the years, the court has expanded Congress’ authority, but Justice Scalia said the majority Monday went too far in giving the national government sole authority.

“The state’s whole complaint — the reason this law was passed and this case has arisen — is that the citizens of Arizona believe federal priorities are too lax,” he wrote. “The state has the sovereign power to protect its borders more rigorously if it wishes, absent any valid federal prohibition.”

Justice Scalia and Justice Alito said the majority opinion gives too much credence to the administration’s priorities rather than to the law itself.

The administration argued that it uses broad discretion to decide which illegal immigrants it wants to pursue, and said a state shouldn’t be allowed to interfere by setting its own penalties. But Justice Alito said that raises a situation in which Arizona’s law would be blocked under this administration, but could have been considered legal under a different administration.

“The United States’ pre-emption argument would give the executive unprecedented power to invalidate state laws that do not meet with its approval, even if the state laws are otherwise consistent with federal statutes and duly promulgated regulations. This argument, to say the least, is fundamentally at odds with our federal system,” he wrote.

Four sections of the Arizona law were under review: The court allowed police immigration status checks to proceed, but struck down the law’s provisions creating state penalties for illegal immigrants who try to get jobs, penalties for legal residents who don’t keep their papers with them, and new police powers to arrest those they think the federal government would be able to deport.

Effects unclear

Mrs. Brewer signed the legislation, known as S.B. 1070, two years ago, saying her state needed to act because the federal government wasn’t doing its job.

The Obama administration promptly sued and lower courts blocked four parts of the law. Mrs. Brewer appealed, and the Supreme Court held oral arguments in April.

As the case moved through the federal courts, a small number of other states moved ahead with their own crackdown laws. Officials in those states said they would have to study the court’s ruling but thought their own provisions granting police powers to check immigration status would pass muster.

Even as some states acted to crack down on illegal immigration, other states and localities passed laws and ordinances to codify so-called sanctuary-city policies that discourage police from reporting illegal immigrants to federal authorities.

Mr. Obama’s administration sued to stop the state crackdown laws, but has not taken action against the sanctuary-city policies.

During the debate over S.B. 1070, Mr. Obama and Attorney General Eric H. Holder Jr. criticized the legislation as opening up the chance for racial profiling. But when they sued, they didn’t make that argument, instead confining their challenge to issues of federal versus state power.

The racial profiling challenge could arise later, though, as the law begins to be enforced — something Mrs. Brewer, Arizona’s governor, said she expects.

“Our critics are already preparing new litigation tactics in response to their loss at the Supreme Court, and undoubtedly will allege inequities in the implementation of the law,” she said. “As I said two years ago on the day I signed SB 1070 into law, ‘We cannot give them that chance. We must use this new tool wisely, and fight for our safety with the honor Arizona deserves.’”

Last week, Mrs. Brewer issued an executive order asking that training materials be distributed to all police to refresh them on what constitutes reasonable suspicion for a stop. Race or ethnicity alone is not enough to meet the threshold.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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