(/sites/default/files/uploads/2012/06/gty_jan_brewer_ll_120604main.gif)Yesterday the United States Supreme Court delivered a ruling on Arizona’s immigration law, aptly described by Rep. Jeff Flake (R-AZ) as “a bit of a mixed bag.”_ Three-out-of-four provisions of the statute known as SB1070 were struck down, but the one requiring police officers to check the status of someone they believe to be in the country illegally was unanimously upheld. As a result, the remaining provision will be sent back to a lower court for further review. It will likely be subject to further challenges. How this ruling will affect suits filed by the administration against similar immigration-related state laws in Alabama, South Carolina and Utah remains unclear at this juncture. Yet the practical effect of the ruling was made clearest by dissenting Justice Antonin Scalia. Referring directly to President Obama’s recent move legalizing key elements of the DREAM Act absent any input from Congress, Scalia made clear that the court’s decision affirmed that states are essentially at the mercy of the president’s executive whims. Seemingly, in the Obama era, the president is entitled to implement policy rejected by the legislature, while also refusing to enforced duly passed laws already on the books.
“The president said at a news conference that the new program is ‘the right thing to do’ in light of Congress’s failure to pass [immigration reform legislation],” Scalia said in a portion of his dissent he summarized from the bench. “Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the president declines to enforce boggles the mind.”
Scalia’s dissent is on the money. The president’s directive to implement quasi-amnesty coupled with his administration’s steadfast refusal to properly enforce immigration laws passed by the legislature make it clear that the imperious Oval Office is concerned little with either the democratic process or the rule of law. What the Supreme Court has essentially said is that Arizona can still inquire about one’s citizenship. But in reality, that inquiry means virtually nothing, because the state is still ultimately beholden to an administration that practices selective law enforcement.
And no sooner had the court ruled, than the administration acted exactly in that regard. Yesterday afternoon the administration announced that it was suspending existing agreements with the Arizona police, and issued a directive telling federal authorities at Immigration and Customs Enforcement (ICE) to decline many of the calls reporting illegal immigrants that the Department of Homeland Security (DHS) may get from Arizona police. “We will not be issuing detainers on individuals unless they clearly meet our defined priorities,” one official, speaking on the condition he not be named, told the _Washington Times. _Furthermore, DHS pulled back on a program known as as 287(g) that allows federal officials to deputize local officials for the purposes of making immigration-related arrests. A DHS official told _Fox News_ the Obama administration has decided those agreements are “not useful.” And not just in Arizona. States that have enacted laws similar to Arizona’s will be getting the same treatment.
The purpose here is clear. The administration knows the Court ruling will increase the number of illegal immigrant reports by local officials. Yet those official must rely on the feds to make arrests. By announcing they will essentially ignore any report that doesn’t meet the administration’s “defined priorities,” the administration is rendering the one aspect of the Court’s ruling with which it disagrees inoperable. Governor Brewer illuminated what such selective law enforcement meant for her state. She tore into president Obama, whom she contended “has demonstrated anew his utter disregard for the safety and security of the Arizona people…We are on our own, apparently.”
On the other three provisions, the vote totals were different depending on the provision. In 5-3 rulings, the Court – which contended that Arizona had set up a parallel enforcement mechanism that punished illegal aliens more severely and interfered with Congress’s authority over the nation’s borders – rejected the part of the law that made it a crime for illegal aliens to seek work, or hold a job in Arizona without legal work authority. By the same margin, they rejected the provision authorizing warrantless arrests of people whom state and local law enforcement suspected of committing deportable offenses. In both instances, Chief Justice John Roberts and Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor and Anthony Kennedy comprised the majority side. They were joined by Justice Alito for a 6-2 rejection of the law’s provision that required immigrants to carry valid immigration papers. Justice Kennedy wrote the statements for the majority Justices.
Yet even as they upheld the most controversial provision of the law, the Court acknowledged the possibility that it could be challenged based on how it was applied, noting that the methods by which it was implemented could lead to abuses. But they ultimately concluded that ”uncertainty” over the law’s implementation prevented the court from making the assumption it would conflict 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,” Kennedy wrote. “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 provision] will be construed in a way that creates a conflict with federal law.”
Yet Kennedy minced no words regarding the provisions that were struck down. “The National Government has significant power to regulate immigration,” he wrote. “With power comes responsibility, and 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. Arizona may have understandable frustrations with the problems cause by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law.”
The Court’s three most conservative Justices, Antonin Scalia, Clarence Thomas and Samuel Alito, each filed separate dissents. Scalia and Thomas both would have upheld the entire law, Justice Alito, all but the aforementioned one provision. Each Justice filed a separate dissent, suggesting disagreement over the legal bases for upholding the state statute.
Justice Antonin Scalia contended the court had run roughshod over Arizona’s right to enforce order within its own borders. “Arizona has moved to protect its sovereignty–not in contradiction of federal law, but in complete compliance with it,” Scalia wrote. “The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.”
Thomas joined Scalia in a partial dissent, contending that “federal immigration law does not pre-empt any of the challenged provisions of SB 1070. I reach that conclusion, however, for the simple reason that there is no conflict between the ‘ordinary meaning’ of the relevant federal laws and that of the four provisions of Arizona law at issue here.”
Justice Alito characterized the two provisions of the law where he departed from the majority as a “remarkable” attack by the federal government. “The United States suggests that a state law may be preempted, not because it conflicts with a federal statute or regulation, but because it is inconsistent with a federal agency’s current enforcement priorities. Those priorities, however, are not law. They are nothing more than agency policy. I am aware of no decision of this Court recognizing that mere policy can have pre-emptive force[.]“
Unsurprisingly, the split decisions had both sides claiming victory and defeat. Republican Arizona Governor Jan Brewer, who released a statement yesterday indicating the state would enforce what is left of the law, called it a “victory for the rule of law.” “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. Yet she expected litigation on the remaining provision to continue. “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. Brewer also issued a warning to the state’s law enforcement officials, cautioning that they “will be held accountable should this statute be misused in a fashion that violates an individual’s civil rights.”
President Obama released a statement saying he was “pleased” with the Court’s decision to block that provisions it did, but he remained “concerned about the practical impact of the remaining provision of the Arizona law that requires local law enforcement officials to check the immigration status of anyone they even suspect to be here illegally…No American should ever live under a cloud of suspicion just because of what they look like.”
Republican presidential candidate Mitt Romney weighed in as well. “Today’s decision underscores the need for a President who will lead on this critical issue and work in a bipartisan fashion to pursue a national immigration strategy. President Obama has failed to provide any leadership on immigration. This represents yet another broken promise by this President,” he said, reminding Americans of Mr. Obama’s pledge during the 2008 election campaign that he would offer an immigration initiative during his first year in office.
Yet Mr. Romney also came out swinging against the Court’s overall decision. “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 contended. Rep. Lamar Smith (R-TX) chairman of the House Judiciary Committee agreed, noting that Monday’s ruling “essentially puts an end to immigration enforcement since the states no longer can step in and fill the void created by the Obama administration.”
Senate Majority leader Harry Reid (D-NV) was pleased with the overall decision, even as he contended the remaining provision “will lead to a system of racial profiling.” Sen. Chuck Schumer (D-N.Y.) echoed Reid’s sentiment. “The Court is sending a stern warning to Arizona that the provision allowing local law enforcement to check people’s immigration documents cannot be implemented in a discriminatory or draconian way, or it will be thrown out like the rest of the law,” he said in a statement.
Since SB1070 clearly prohibits racial profiling – and the Supreme Court agrees – this is a warning that serves more for political demagoguery than as a genuine “word to the wise.” Nonetheless, the president, through executive fiat, appears to have cornered Arizona, and perhaps other states as well. Even if more illegal immigrants are identified and made known to the federal government in virtue of what remains of SB1070 (identified during the commission of crimes, mind you) it will be to no end, as the Obama administration made abundantly clear as soon as the Supreme Court ruling was announced. Unfortunately, lawlessness and crass political calculations remain the status quo of America’s illegal immigration policy.
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