Redstate...
The
Arizona
Decision and What It Means
Posted by
davenj1
Monday,
June 25th
Today, the
United States Supreme Court, in a 5-3 decision (with Justice Kagan
recusing
herself), mainly gutted Arizona’s SB 1070, the state’s immigration law.
Make no
mistake, although prevailing on the most publicized aspect of the case,
Arizona
lost. What is somewhat surprising is the legal rationale used and if
you are a
conservative proponent of state laws that address the problem of
illegal aliens
within their borders, this has to be disheartening news.
First, the
Court invalidated that section of the law which provided for criminal
sanctions
for failure to carry documents attesting to the legality of their
status in the
United States. Secondly, it invalidated that section which penalized
aliens who
engaged in unauthorized employment within the state. Third, they struck
down
the potentially warrantless arrest and detention of suspected
undocumented
aliens. What they did allow is for police to, once arrested, determine
the
immigration status of individuals. However, at this point the question
becomes,
“What then?”
Arizona
police officials can report these individuals to federal authorities,
but federal
authorities are free to do absolutely nothing. Conversely, state
officials were
warned that even this section, although upheld here, could be revisited
in the
future if the state should indefinitely detain these people. That is,
although
upheld in furtherance of a federal law, the federal government had
final say on
the disposition of that person. They could simply say, “Thank you. Now
let them
go.” Or they could say, “Thank you. We’ve been looking for that guy-
he’s in a
drug cartel.”
With
similar laws on hold in other states, some more strict than this one,
it would
appear that their chances, given this decision, are doomed. In fact,
many
viewed the Arizona statute perhaps the most lenient one under
challenge. If the
states cannot prevail under that set of circumstances, it is likely
that
Circuit Courts across the country will strike similar or stronger laws
in other
states.
The
decision was written by Justice Kennedy and joined by John Roberts,
Ginsburg,
Sotomayor and Breyer. Scalia, Thomas and Alito of course agreed with
Section
2(b) being upheld, but not with the other aspects being struck down.
His
argument and that of another concurring/dissenting opinion by Thomas
argued the
issue from a federalism standpoint. They correctly noted that states
are free
to make a state crime that which is also a federal crime under their
general
state policing powers. That line of reasoning would certainly lend some
support
to Arizona’s requirement that immigrants carry their documents on their
person.
That, after all, has been federal law since the 1950s. Where the
minority gets
in a little trouble is the section that penalizes aliens who engage in
unauthorized employment in Arizona. While it is true that just last
term, this
very Court determined that Arizona could revoke the business licenses
of
businesses that hired undocumented aliens, the thrust of enforcement at
the
federal level has been against employers, not “employees.” And they
would be
correct. During the debate over IRCA under Reagan, this issue was
brought up
and the Congress rejected criminal sanctions (fines) against employees
and
directed them at employers. Here, it is understandable that they would
not
grant to states a tool they deny to the federal government.
The
decision, as written by Kennedy, simply slammed the door shut on these
federalism-guided theories. What it did was frame the issue in terms of
national foreign relations. By doing so, they made the issue
exceptionally
difficult for states to defend immigration laws in the future. Kennedy
stated
that foreign countries need to be assured of the status of their
nationals
within our borders and to do so, they need to speak to one voice- the
federal
government- not 50 individual entities. By framing it in an
international
relations rationale, they ignored- indeed, rejected- the federalism
argument.
Obviously, no one would argue that the federal government is uniquely
situated
and tasked in the Constitution’s Enumerated Powers Clause with
conducting
foreign relations.
For the
“restrictionists” out there- those who believe in strong federal
immigration
laws or, in their absence states stepping in where the federal
government
abdicates their duty (a/k/a Obama)- this was a serious blow to efforts
in a
certain sense. It was a blow in that efforts at the state level now
appear to
be precluded, especially in light of the “national foreign relations”
rationale. Simply, it very hard for states to overcome that rationale
and the
Supreme Court has placed immigration in the center of the foreign
relations realm.
However, although the state battlefield may be shut off, there is still
immigration reform at the federal level.
In a way,
the Court was telling the states that this is a policy decision best
left for
the federal government. Of course, the reality is that the federal
government
has done precious little to reform immigration policy which is the
reason
Arizona acted in the absence of leadership or meaningful enforcement
from
Washington. It is interesting to note that many of the deportations
Obama now takes
credit for were initiated during the Bush Administration. It is also
interesting to note that the number of illegal immigrants in the US has
not
dropped because of anything the Obama Administration has done beyond
prolonging
this recession. But, the negative economic times will not last forever
(unless
Obama is reelected in November) and jobs will return and the economy
will
expand and illegal immigrants will again begin streaming across the
border.
That is an economic fact, not a foreign relations dilemma. Unless real,
comprehensive immigration reform is not enacted at the national level,
we will
repeat these arguments in the future. The status quo will not do.
Unilateral
Presidential directives will not solve the problem or suffice as a
solution. Unfortunately,
today the Supreme Court told the states: “Thanks for your help where WE
think
it is necessary, but stay out of this issue- it is not for you to
reform.”
Read this
and other articles at Redstate...
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