The Supreme Court considered four provisions of Arizona’s immigration law, SB 1070, and today it struck down three of them. Eight justices took part because Justice Kagan recused herself, since she had worked on the matter before she joined the Court.
Ruling 5-3, the Court struck down the provision making it a crime for illegals to apply for or have a job in Arizona. The Court held that this provision violated federal preemption of immigration law because Congress has chosen to pursue employers who hire illegals, but not illegal employees.
Also ruling 5-3, the Court struck down the provision allowing the police to arrest someone without a warrant if they suspect that person has committed a crime that could result in his deportation. The five votes were Kennedy (who wrote the opinion), Breyer, Ginsburg, Sotomayor, and Roberts. The three against were Scalia, Thomas, and Alito.
Ruling 6-2, this time joined by Alito, the Court struck down the provision requiring all non-citizens to carry papers with them to prove they are here legally.
The Court upheld for now the most controversial provision, 8-0, which allows police to check the immigration status of someone stopped for another reason (such as speeding) if the police have “reasonable suspicion” the person is here illegally.
The challenge to the “stop and check” provision was based on concern that “reasonable suspicion” would lead to racial profiling. Justice Kennedy wrote that since the law hasn’t been enforced yet, it is too soon to tell if “reasonable suspicion” would be applied in a manner consistent with federal law:
“The Federal Government has brought suit against a sovereign State to challenge the provisions even before the law has gone into effect. There is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts it would be inappropriate to assume that [‘stop and check’] will be construed in a way that creates a conflict with federal law.
“This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.”
So the law will have to take effect, some people will have to be stopped and checked and then sue, and their cases will have to work their way back up to the Supreme Court to see if there is racial profiling.
Basically, the Court said “stay tuned” on the “reasonable suspicion” provision.
Overall, this was a victory for President Obama and probably the best outcome he could hope for. There is a strong sentiment that the Court’s failure to throw out “reasonable suspicion” at this point will energize Hispanic turn out and increase Obama’s votes.
Mitt, who has called S. B. 10170 a “model” for the country, gave a cowardly word-salad reaction to the decision that basically blamed President Obama for not passing immigration reform (which he tried, but failed to do because of the filibuster in the Senate), but didn’t say what he would do about immigration if he were president.