Dear Dahlia, Emily, and Judge Posner,
What is striking to me about the court’s decision in the Arizona immigration case is what a total victory this decision was for the U.S. government and for the solicitor general. Press coverage that leads with the notion that the court upheld the “key provision” or suggesting that the overall outcome was a “split verdict” seems way off base to me. The feds won.
Here are the Arizona provisions the court struck down:
- The provision making it a crime to be present in Arizona without carrying an alien registration document
- The provision making it a crime for an “unauthorized alien” to look for work or take a job
- The provision allowing an Arizona law enforcement officer to arrest anyone that the officer believes has committed a crime that would make him deportable.
Here are the Arizona provisions the court held were valid:
- No provisions. Not any. None.
The court did hold that it was premature to invalidate the fourth provision at issue. This part of the law does two things: 1) It requires state officials to determine the immigration status of any person they stop on some other legitimate basis (if they have reason to suspect the person is in the country unlawfully), and 2) It requires that the police must have the person’s immigration status determined before the person is released. The court did not pass final judgment on the first part, the mandatory status check. And it strongly indicates that the second part would be unconstitutional if it were read to allow prolonged detention. “Detaining individuals solely to verify their immigration status would raise constitutional concerns,” the court says. And if—if—the the provision “only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive preemption…” “Likely would”—if read and enforced by the Arizona authorities in this more benign way. At least “absent some showing” of other adverse consequences. And subject to further civil rights challenges. Rather than uphold this provision, the court notes that “the nature and timing of this case counsel caution in evaluating [its] validity” because the law has not gone into effect and there is thus uncertainty about “what the law means and how it will be enforced.”
So what does Arizona win? A temporary reprieve for one provision that will be upheld by the court only if Arizona abandons the language that requires detaining a person until their immigration status can be verified. That may be something. But not nearly as much as that which was invalidated.
More generally, the tenor of the opinion of the court is a vindication of federal authority over immigration. “Federal law makes a single sovereign responsible for maintaining a comprehensive and unified system to keep track of aliens within the Nation’s borders,” and quotes from an earlier decision that “Conflict is imminent whenever two separate remedies are brought to bear on the same activity.” It will take at least several days of analysis before one can confidently predict what today’s decision will mean for immigration laws enacted recently by other states. But there is virtually nothing in the court’s opinion that should give lawmakers in those other states any comfort whatsoever.
And that is why Justice Scalia is so upset. (Unless, Dahlia, he is being anticipatorily mad about what may happen on Thursday. You think?) I want to address Scalia’s amazing dissent in a future posting. And to explore whether Chief Justice Roberts changed his vote and joined with Kennedy, Ginsburg, Breyer and Sotomayor in order to avoid a 4-4 tie. (It would not be the first time a chief justice had done that.)
More to come. Much more.