New York Times Editorial: United States Supreme Courts Acts on Immigration Law
The Supreme Court rejected the foundation of Arizona’s cold-blooded immigration law and the indefensible notion the state can have its own foreign policy. In a 5-to-3 decision, the court blocked three of four provisions in the statute and gave a significant, though incomplete, victory to the federal government.
The majority opinion, by Justice Anthony Kennedy, knocked out sections of Arizona’s 2010 statute, S.B. 1070, that made it a crime not to carry immigration papers in the state and a crime for an undocumented immigrant to apply for a job or to work there. The court also struck down a section that gave state officers power to arrest without a warrant anyone that they had “probable cause to believe” had committed a crime that could make that person subject to deportation.
Justice Kennedy’s opinion rests heavily on the principle that the federal government has exclusive power over immigration policy as part of its power to control relations with foreign nations — and thus pre-empts states from entering this area of governance.
The ruling is a clear warning to other states that they, too, are barred from writing their own immigration laws, including imposing state punishments on the undocumented. Arizona’s fallacious claim that part of its statute was intended merely to help federal agents do their job was rejected outright.
The court said the requirement to carry papers intruded on federal registration of immigrants. The criminal section, it said, added prohibitions “where no federal counterpart exists.” And the provision allowing the state to arrest a person for being deportable breached “the principle that the removal process is entrusted to the discretion of the federal government.”
The one section the court did uphold requires officers to check the immigration status of anyone they stop, arrest or detain on some other legitimate basis — if the officer has a “reasonable suspicion” the person is in the country illegally. Justice Kennedy wrote that until that provision is put into operation, the court could not assume that it would be applied in ways that conflict with federal law.
But the intent of the law is to harass Hispanics and to drive out immigrants by “attrition through enforcement.” That section of the law, as it goes into effect, will promote racial profiling of all Hispanics, including American citizens and legal residents. By mandating verification of immigration status even when it is unlikely the federal government will deport the individual, the provision sows fear that any contact with law enforcement — even for a jaywalking ticket — could result in detention.
Justice Kennedy’s opinion noted that allowing the provision to stand for now “does not foreclose other pre-emption and constitutional challenges to the law as interpreted and applied after it goes into effect.”
But in allowing the section to stand, the majority bends over backward not to deal forthrightly with the racial context of Arizona’s immigration efforts. The majority should have struck it down as well.
A pending lawsuit against S.B. 1070, including this section, could become a compelling challenge on the basis of discrimination. The Justice Department should ensure that the state’s application of this section is as careful as the Supreme Court said it expects.
A version of this editorial appeared in print on June 26, 2012, on page A22 of the New York edition with the headline: Justices assert federal power on immigration.