Monday, June 25, 2012

SCOTUS: the Immigration Case

Hey, so the coverage on today's immigration case is confusing a lot of people.

Lemme splain.  No, is too much.  Lemme sum up:

Arizona has - to put it kindly - gone round the bend on immigration.  They have an extremely conservative, yet also very quirky, governor, and they passed an immigration law that the Obama Administration actively opposed.  If you go back to our Con Law summary, we're talking about federalism and the Supremacy Clause, specifically about the fact that the Constitution says: "The Congress shall have power to... establish a uniform rule of naturalization."  That's a specific, constitutional grant of federal power.  Which means: federal preemption, the federal government trumps the state government.  The federal government does not have to, by the way, say explicitly that they are preempting any state jurisdiction; and when there is a specific, constitutional federal power grant, the Court is far more likely to find federal preemption.

The Arizona law tramples all over the line that is supposed to exist between federal and state jurisdiction, basically because the people in charge in Arizona don't like how the federal government is handling immigration.  But that's what I think and what is pretty clear based on our legal history.  What did the Court think?

The Court opinion was written by Justice Kennedy, with whom Roberts, Ginsburg, Breyer, and Sotomayor joined (so right now you're seeing that it's probably more a left- than right-leaning opinion, and also that CJ Roberts is trying to make it seem like the Court is not only a 5-4 split every time, but can be more moderate - which is questionable, but interesting).  Scalia, Thomas, and Alito concurred in part, dissented in part (separately from each other, so it sounds like the conservatives are all over the place.  Kagan did not participate - probably because of her previous job representing the Administration).  So it's 5-3 in some places, 6-2 in one, and up to an 8-0 in one, with one justice not in the count.

There were 4 separate questions in play:

1. Whether Arizona can require its police to check the immigration status of the people they detain* (*not necessarily an arrest here - it could be like a traffic stop) before releasing them.

2. Whether a state (like Arizona) can create a separate state crime of being in America illegally.  Yeah, this sounds strange, and it is.  Because Arizona thought that the US is not enforcing the immigration laws enough, the state tried to create its own jurisdiction by creating a state crime to fine and maybe imprison people who do not have a legal federal immigration status.

3. Whether a state (like Arizona) can create a state crime of applying to work in the state while being undocumented.

4. Whether a state can authorize its police to arrest people - without a warrant - simply because the police believe that the person arrested has committed a deportable offense.  

So let's take a view of what Arizona wants to do:  AZ wants to make it clear that its police officers can stop you to check your immigration status and ask you for papers indicating your citizenship status.  Then AZ wants to have its cops be able to arrest you if: you don't have papers, you applied to work in AZ without papers, or if the cop just THINKS you have done something for which you could be deported.

The Court said

1. Sort of Yes, sort of We Don't Know Yet.  The Court sometimes decides that it's not the right time to hear a question, and that is what it is saying here: basically, they are saying that we don't know yet how the law will be implemented, and the lower court's decision to prevent this section of the law from taking effect was wrong, because the limitations placed on the provision may be sufficient to render the section of the law legal.
Three limits are built into the state provision. First, a detainee is presumed not to be an alien unlawfully present in the United States if he or she provides a valid Arizona driver’s license or similar identification. Second, officers “may not consider race, color or national origin . . . except to the extent permitted by the United States [and] Ari­ zona Constitution[s].” Third, the provisions must be “implemented in a manner consistent with federal law regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens...”
The nature and timing of this case counsel caution in evaluating the validity of §2(B). The Federal Government has brought suit against a sovereign State to challenge the provision 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 §2(B) will be construed in a way that creates a conflict with federal law.

So the Court is not saying this section is legal, only that we don't yet know how the state will enforce it, and we don't yet know how the state courts will interpret it.  It is possible that the enforcement and interpretation could satisfy the Court that this state provision is consistent with federal law, and therefore, constitutional.  So while the reports on this provision make it sound like a smack down of the Obama Administration, it really is not.  Yet.

2. No.  The federal government has preempted the field (i.e. there is no room left for state regulation).

3. No.  This state law intrudes on the choice Congress made in its immigration regulatory scheme/system to not impose penalties for applying to work - therefore the federal government preempted.

4. No.  The federal government has decided when state and local officials may arrest "removable aliens," and when they may not.  The Arizona law is attempting to change the Congressional and Attorney General choices on when state and local officials may act.  They can't do that.  The federal law preempts.

The Concurrences/Dissents

Scalia says states should be able to keep people out of their borders.  Scalia tries to parse between "naturalization" and "immigration" and says states have an interest in the latter.  He says immigration laws by the states are only illegal if they conflict with federal immigration law.  He concurs on question Number 1, the deferral of consideration of the required papers check that the majority decided.  But then on Number 4, the warrantless arrests he says, "Arizona is entitled to have 'its own immigration policy'—including a more rigorous enforcement policy—so long as that does not conflict with federal law."  On Number 2, Scalia says that the federal government has not preempted the field of immigration law, and that the federal government cannot prevent the state from creating additional criminal penalties.  Finally, on question 3, Scalia again says that the federal government has not preempted because they specifically made the decision not to make a crime of applying for work as an undocumented person.  Scalia is using a restrictive view of the notion of federal preemption of a field of law.  Then he throws in this, what I would call very political, question: "Must Arizona’s ability to protect its borders yield to the reality that Congress has provided inadequate funding for federal enforcement—or, even worse, to the Executive’s unwise targeting of that funding?"

Thomas says that he agrees with Scalia that none of the Arizona law is preempted by federal law, but underscores that he goes beyond Scalia, in saying that federal preemption law should be based on the plain meaning of the laws involved - that there should essentially be no such concept as federal preemption of a field of law.  One note here: federal preemption of a field of law is the concept that when the federal government takes over an area of law - that it becomes clear to the Court that the federal government has a regulatory scheme, replete with policy decisions on the parameters of the law and how the area of law should progress - that the federal government has preempted the field, and therefore all state laws that enter into that area of the law will be preempted.  Thomas is taking an even narrower view of federal preemption than Scalia -  by saying that instead we should just look at the language of the federal and state laws and see if they contradict each other.  If not, Thomas would allow the state law to stand.  "I agree with JUSTICE SCALIA that federal immigration law does not pre-empt any of the challenged provisions of S. B. 1070. I reach that conclusion, however, for the simple reason that there is no conflict between the 'ordinary meanin[g]' of the relevant federal laws and that of the four provisions of Arizona law at issue here... 'Pre-emption analysis should not be a free- wheeling judicial inquiry into whether a state statute is in tension with federal objectives, but an inquiry into whether the ordinary meanings of state and federal law conflict'" - this last bit is Thomas quoting himself, btw.

Alito says that he agrees with the majority on Number 1 and Number 2, but disagrees on Numbers 3 & 4.  On Numbers 3 & 4, he says, "Because state police powers are implicated here, our precedents require us to presume that federal law does not displace state law unless Congress’ intent to do so is clear and manifest. I do not believe Congress has spoken with the requisite clarity to justify invalidation of §5(C) [Question Number 3 - state crime to apply for jobs]. Nor do I believe that §6 [Question Number 4 - warrantless arrest] is invalid. Like §2(B) [Question Number 1 - papers check], §6 [Question Number 4] adds virtually nothing to the authority that Arizona law enforcement officers already exercise. And whatever little authority they have gained is consistent with federal law."

P.S. I'm seeing a lot of people trying to, as Scalia does, separate naturalization and immigration.  And while there are definite differences, our modern concept of immigration flows from our concept of naturalization.  We are, in some ways, able and willing to control the flow of people far more than we were able to do at the time of the Constitutional Convention.  And the federal government has been at the forefront of that increase in concern and regulation of immigration for quite some time.  But I'm happy to have that argument.

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