Monday, June 25, 2012

Moderation: most of Arizona SB 1070 stricken by Supreme Court

Court strikes down much of Arizona immigration law : SCOTUSblog:
Ken Russell at Scotusblog reports on the Supreme Court's 5-3 decision striking most of the SB 1070 - Arizona's punitive law dealing with aliens.  In Arizona v. U.S. Justice Anthony Kennedy explains that the court allows the provision requiring Arizona police to check the immigration status of persons suspected of being illegal aliens.  The provision is so broad that it is likely - as enforced - to be a tool of harassment of Mexican Americans.  But on its face the law is reasonable, so the majority leaves to another day assessment of it in practice.

The other provisions blatantly intrude on federal prerogatives: criminalizing work, commanding alien registration, and permitting warrantless arrest and search on suspicion of being an alien subject to deportation.  Those provisions interfere with the federal government's exclusive power over immigration, Kennedy writes.

The majority explains the provision it upheld and limited:
“However the law is interpreted, if §2(B) 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 pre- emption—at least absent some showing that it has other consequences that are adverse to federal law and its objectives. There is no need in this case to address whether reasonable suspicion of illegal entry or another immigration crime would be a legitimate basis for prolonging a detention, or whether this too would be preempted by federal law.”
Justice Antonin Scalia's typically hyperbolic dissent centers on the phrase "sovereign state", which he says includes the ability to exclude people from its territory.  Well, no - because the Constitution gives the Congress the power to “establish an uniform Rule of Naturalization,” Art. I, §8, cl. 4.*  State sovereignty is much abridged by that provision, contrary to Scalia's view, which is driven by his sympathy for the anti-immigrant sentiment in Arizona:

Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so. 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.
Today's statement by President Obama shows a markedly different sentiment:
I remain concerned about the practical impact of the remaining provision of the Arizona law that requires local law enforcement officials to check the immigration status of anyone they even suspect to be here illegally. I agree with the Court that individuals cannot be detained solely to verify their immigration status. No American should ever live under a cloud of suspicion just because of what they look like. Going forward, we must ensure that Arizona law enforcement officials do not enforce this law in a manner that undermines the civil rights of Americans, as the Court’s decision recognizes.
Furthermore, we will continue to enforce our immigration laws by focusing on our most important priorities like border security and criminals who endanger our communities, and not, for example, students who earn their education – which is why the Department of Homeland Security announced earlier this month that it will lift the shadow of deportation from young people who were brought to the United States as children through no fault of their own.
* It is also worth noting that despite the leading role of now-lionized as liberty-loving founding fathers (e.g. slave-owning future Presidents Madison and Jefferson) - Article 1, Sec. 9 contemplated a future federal ban on importation of slaves by states: "The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. "

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