Representative Mark Parkinson (r): “Show us your papers, please.” (April 29, 2010)
In an opinion [ARIZONA ET AL. v. UNITED STATES, No. 11-182. Argued April 25, 2012-Decided June 25, 2012] [pdf] released today the U.S. Supreme Court overturned three of the four challenged provisions in Arizona’s SB 1070 on the grounds that federal law preempted state law.
…Sections 3, 5(C) and 6 of S. B. 1070 are preempted by federal law….
….Section 3 intrudes on the field of alien registration, a field in which Congress has left no room for States to regulate….
….Section 5(C)’s criminal penalty stands as an obstacle to the federal regulatory system….
….The correct instruction to draw from the text, structure, and history of IRCA is that Congress decided it would be inappropriate to impose criminal penalties on unauthorized employees….
….By authorizing state and local officers to make warrantless arrests of certain aliens suspected of being removable, §6 too creates an obstacle to federal law….
However, on the “your papers, please” portion of the law:
….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….
….It is not clear at this stage and on this record that §2(B), in practice, will require state officers to delay the release of detainees for no reason other than to verify their immigration status. This would raise constitutional concerns. And it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision. But §2(B) could be read to avoid these concerns. 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. 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 conflicts with federal law….
….This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect….
The “your papers, please” part depends on how the State of Arizona implements it.
And, of course, the Supreme Court’s resident paleo-originalist, Justice Antonin Scalia, injects a political jab in his dissent:
….After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants under the age of 30. If an individual unlawfully present in the United States
“• came to the United States under the age of sixteen;
“• has continuously resided in the United States for at least five years…,
“• is currently in school, has graduated from high
school, has obtained a general education development certificate, or is an honorably discharged veteran…,
“• has not been convicted of a [serious crime]; and
“• is not above the age of thirty,”
then U. S. immigration officials have been directed to “defe[r] action” against such individual “for a period of two years, subject to renewal.” The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conducting as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonenforcement program envisions, will necessarily be deducted from immigration enforcement. 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 the Administration’s proposed revision of the Immigration Act. 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….
….Thousands of Arizona’s estimated 400,000 illegal immigrants-including not just children but men and women under 30-are now assured immunity from enforcement, and will be able to compete openly with Arizona citizens for employment.
Arizona has moved to protect its sovereignty-not in contradiction of federal law, but in complete compliance with it. 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. I dissent.
“…Perhaps it is, though Arizona may not think so…”
That’s the whole point of the majority opinion. Arizona doesn’t get to decide. The President does, and Congress, when they get around to it.
So much for being an apolitical originalist.