- 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 it upheld the most important plank, which allows police to stop and question the immigration status of those they suspect are in the country illegally.

Arizona’s governor said she’ll move quickly to begin enforcing that part of the law, even as the rest of it lies on the cutting floor.

In the complex 5-3 ruling, all eight justices said Arizona police can continue to question the legal status of those they stop, but the five-justice majority struck down the parts of the law in which Arizona sought to impose its own criminal penalties for immigration violations, with the majority saying that that power is reserved exclusively to the federal government.

The decision comes little more than a week after Mr. Obama announced he would stop deporting most young adult illegal immigrants, and coupled with the ruling, it marks a seismic shift in the national immigration debate.

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

“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,” Justice Kennedy wrote.

He was joined by Chief Justice John G. Roberts Jr. and Justices Sonia Sotomayer, Ruth Bader Ginsburg and Stephen G. Breyer.

Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. each wrote dissents.

Justice Elena Kagan didn’t take part in the ruling.

All eight justices ruled that Arizona law enforcement can question those they stop about their legal status, but the three dissenting justices said the state should have been allowed to enact its own penalties for immigration violations as well.

Justice Scalia said the question at the founding of the country was not whether states had power to exclude people, but rather whether the federal government had that power as well.

“Arizona is entitled to have ‘its own immigration policy’ — including a more rigorous enforcement policy — so long as that does not conflict with federal law,” he wrote.

Arizona Gov. Jan Brewer, a Republican, signed the law in 2010, saying her state needed to act because the federal government wasn’t doing its job.

Her signature on the bill, known as SB 1070, instantly ignited a national debate about Mr. Obama’s policy at the federal level, which increasingly had tilted away from deporting rank-and-file illegal immigrants.

Mrs. Brewer said the decision was “a victory for the rule of law” and said she’ll move forward with the new authorities for police — saying police in her state are prepared to enforce it fairly.

“After more than two years of legal challenges, the heart of SB 1070 can now be implemented in accordance with the U.S. Constitution,” she said.

The law required police to check immigration status of those they encountered whom they had reasonable suspicion were in the country illegally, and required that they contact federal immigration authorities to give them a chance to put the individuals in deportation proceedings.

The law also imposed state penalties on illegal immigrants who applied for jobs.

The Obama administration sued and lower courts stayed both of those parts of the law, and Mrs. Brewer appealed.

In the intervening two years a handful of other states moved ahead with their own crackdown laws, while other localities actually went the other direction to codify so-called sanctuary-city policies that discouraged 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 SB 1070, Mr. Obama and Attorney General Eric H. Holder Jr. both criticized the law 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 still come later, though, as the law begins to be enforced — something Mrs. Brewer 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.

Still to be seen is whether Thursday’s ruling opens the floodgates on other states to follow suit.

In 2011 the court upheld an earlier Arizona law that required all businesses in the state to use E-Verify, the voluntary electronic system the federal government makes available for businesses to make sure their new hires are legal workers.

After Arizona, a series of other states passed similar E-Verify laws, but that pace slackened in 2012, according to a study by ImmigrationWorks USA, which pushes for a broad national legalization solution to illegal immigration.

Sen. Charles E. Schumer, New York Democrat and chairman of the Senate’s subcommittee overseeing immigration, said before the Supreme Court’s oral arguments in April that he would try to pass a law undoing both this year’s decision and a 2010 ruling by the court that allowed states to require businesses to use E-Verify, the electronic worker verification system.

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

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