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Supreme Court strikes down most SB 1070 provisions

Police allowed to check immigration status

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The U.S. Supreme Court struck down most of Arizona's controversial SB 1070 anti-illegal immigration law on Monday, invalidating most of its provisions.

The justices did allow police to check the immigration status of those they arrest, saying that the implementation of that part of the law must be reviewed by state courts.

"There is a basic uncertainty about what the law means and how it will be enforced," the decision said, as the court essentially invited future challenges based on how the law may be applied.

The high court in a 4-3 vote held that most of SB 1070's provisions are preempted by federal authority.

Despite most of the law being struck down, Arizona Gov. Jan Brewer hailed the decision as "a victory for the rule of law."

"After more than two years of legal challenges, the heart of SB 1070 can now be implemented," she said Monday in a press release.

The executive director of the Arizona Democratic Party, Luis Heredia, called the law "a tool of divisive voices for political gain."

The court's ruling that police may be required to check immigration status "does not make it just or moral," he said in a release.

Struck down were provisions that:

  • Authorize police to arrest without a warrant anyone "the officer has probable cause to believe . . . has committed any public offense that makes the person removable from the United States."
  • Making it a state crime for an undocumented person to seek or engage in work.
  • Making it a state crime to fail to comply with federal alien-registration requirements.

Upheld, at least for the moment, was the portion of the law (Section 2(B)) that requires police to check immigration status if they have reasonable suspicion to believe someone is here illegally.

The court said that it "was improper to enjoin §2(B) before the state courts had an opportunity to construe it and without some showing that §2(B)’s enforcement in fact conflicts with federal immigration law and its objectives."

"The mandatory nature of the status checks does not interfere with the federal immigration scheme," the court said.

"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," the court said.

Justice Anthony Kennedy delivered the opinion, which was joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. Dissenting were Antonin Scalia, Clarence Thomas and Samuel Alito. Justice Elena Kagen recused herself from the case because of work she did while U.S. solicitor general.

In his reading of the opinion, Kennedy said the ruling "does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect."

The decision said that "by authorizing state and local officers to make warrantless arrests of certain aliens suspected of being removable, (Section 6 of SB 1070) too creates an obstacle to federal law."

"As a general rule, it is not a crime for a removable alien to remain in the United States. The federal scheme instructs when it is appropriate to arrest an alien during the removal process," the decision said.

From the opinion:

The Attorney General in some circumstances will issue a warrant for trained federal immigration officers to execute. If no federal warrant has been issued, these officers have more limited authority. They may arrest an alien for being “in the United States in violation of any [immigration] law or regulation,” for example, but only where the alien “is likely to escape before a warrant can be obtained.” §1357(a)(2). Section 6 attempts to provide state officers with even greater arrest authority, which they could exercise with no instruction from the Federal Government. This is not the system Congress created. Federal law specifies limited circumstances in which state officers may perform an immigration officer’s functions. This includes instances where the Attorney General has granted that authority in a formal agreement with a state or local government. See, e.g., §1357(g)(1). Although federal law permits state officers to “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States,” §1357(g)(10)(B), this does not encompass the unilateral decision to detain authorized by §6.

The decision said that Section 3, which made it a crime to not comply with federal registration requirements, "intrudes" into a federal authority "in which Congress has left no room for States to regulate."

"Because Congress has occupied the field, even complementary state regulation is impermissible," the decision said.

The section of SB 1070 that made it a crime for an undocumented alien to work or seek employment "stands as an obstacle to the federal regulatory system," the decision said.

"Congress decided it would be inappropriate to impose criminal penalties on unauthorized employees. It follows that a state law to the contrary is an obstacle to the regulatory system Congress chose," the Supreme Court opinion said.

On police checks of immigration status, the court said:

If the law 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 would likely survive preemption—at least absent some showing that it has other consequences that are adverse to federal law and its objectives.

The decision did not address the provision that allows citizens to sue police officers for not enforcing the law.

The court heard oral arguments on SB 1070 in April. During the hearing, justices were skeptical of several of the U.S. Justice Department's arguments for continuing to block the law, enforcement of which was stayed by a federal judge in 2010.

Similar laws have since passed in a handful of states.

A federal judge blocked parts of Arizona’s law after the Justice Department sued, claiming the state was trampling on federal authority to regulate immigration.

That July 2010 preliminary injunction kept most of the law's provisions from being enforced. In April 2011, the 9th Circuit Court of Appeals upheld the injunction, setting the stage for the Supreme Court case.

TucsonSentinel.com's original reporting and curation of border and immigration news is generously supported in part by a grant from the Ethics and Excellence in Journalism Foundation.

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Latest comments on this storyRead all 9 »

9
1466 comments
Jun 25, 2012, 10:03 am
-0 +0

Admittedly, it’s been about a year since I’ve read SB1070, but I remember it specifically stating that suspicion over immigration status wasn’t enough probable cause for shaking someone down. But, after I finish reading the decision I guess I’ll take another look at SB1070.

8
402 comments
Jun 25, 2012, 9:28 am
-0 +0

Bret Linden opined:

However, SB1070 never allowed people to be stopped based on probability of “removability”. It says once someone is legally stopped for another matter, and there is reasonable suspicion that detainee is not here legally, then we move forward with checking immigration status.

Section 6, which was struck down, did just that: allowed for warrantless arrests based on “removability.”

From the decision:

“Section 6 attempts to provide state officers even greater authority to arrest aliens on the basis of possible removability than Congress has given to trained federal immigration officers. Under state law, officers who believe an alien is removable by reason of some “public offense” would have the power to conduct an arrest on that basis regardless of whether a federal warrant has issued orthe alien is likely to escape. This state authority could be exercised without any input from the Federal Government about whether an arrest is warranted in a particular case. This would allow the State to achieve its own immigration policy. The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed.

“This is not the system Congress created.”

7
1466 comments
Jun 25, 2012, 9:07 am
-0 +0

@Dylan Smith

Thanks for the post.

Yes, I intend to read the decision, and have already started. I’m trying to read a few lines between my other duties. Hopefully I can have it all read today, but it looks pretty long. So, that disclaimer said, your post isn’t perfect. Allow me to demonstrate.

“If the police stop someone based on nothing more than possible removability, the usual predicate for an arrest is absent.”

True. However, SB1070 never allowed people to be stopped based on probability of “removability”. It says once someone is legally stopped for another matter, and there is reasonable suspicion that detainee is not here legally, then we move forward with checking immigration status.

All that said, the quotes you posted make it appear, at least to me, that with the exception of the first quote (and the second quote that doesn’t play) that the key provision of SB1070 would survive further legal challenges.

Well, the last quote sounds like we’re in for more of a mess.

Sorry, we missed your input...

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Photo illustration by Todd Wiseman and Chad Kainz/Texas Tribune

Key quotes

Key lines from the U.S. Supreme Court's decision on SB 1070:

"As a general rule, it is not a crime for a removable alien to remain in the United States."

"If the police stop someone based on nothing more than possible removability, the usual predicate for an arrest is absent."

"The mandatory nature of the status checks does not interfere with the federal immigration scheme."

""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."

"If the law 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 would likely survive preemption—at least absent some showing that it has other consequences that are adverse to federal law and its objectives."

"This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect."

""Congress decided it would be inappropriate to impose criminal penalties on unauthorized employees. It follows that a state law to the contrary is an obstacle to the regulatory system Congress chose."

"Congress has specified which aliens may be removed from the United States and the procedures for doing so. Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law. ... Removal is a civil, not criminal, matter."

"Where Congress occupies an entire field, as it has in the field of alien registration, even complementary state regulation is impermissible. Field preemption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards."

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