SCOTUS Strikes Down Part of Arizona Immigration Law

In a surprisingly welcome decision, the Supreme Court overturned three of the four provisions of Arizona’s infamous SB 1070 and remanded the fourth one back to the state courts before ruling on it. The lineup was very interesting — Chief Justice Roberts and Justice Kennedy joined Justices Breyer, Sotomayor and Ginsburg; Justice Alito agreed with them on one of the four provisions, and Justices Scalia and Thomas were left in dissent. You can read the full ruling here.

This was really a pretty straightforward case. The Constitution clearly gives authority over immigration to the federal government:

The Federal Government’s broad, undoubted power over immigration and alien status rests, in part, on its constitutional power to “establish an uniform Rule of Naturalization,” Art. I, §8, cl. 4, and on its inherent sovereign power to control and conduct foreign relations. Federal governance is extensive and complex. Among other things, federal law specifies categories ofaliens who are ineligible to be admitted to the United States; requires aliens to register with the Federal Government and to carry proof of status; imposes sanctions on employers who hire unauthorized workers; and specifies which aliens may be removed and the procedures for doing so. Removal is a civil matter, and one of its principal features is the broad discretion exercised by immigration officials, who must decide whether to pursue removal at all. Immigration and Customs Enforcement (ICE), an agency within the Department of Homeland Security, is responsible for identifying, apprehending, and removing illegal aliens…

The Supremacy Clause gives Congress the power to preempt state law. A statute may contain an express preemption provision, but state law must also give way to federal law in at least two other circumstances. First, States are precluded from regulating conduct in a field that Congress has determined must be regulated by its exclusive governance. Intent can be inferred from a framework of regulation “so pervasive . . . that Congress left no room for the States to supplement it” or where a “federal interest is so dominant that the federal system will be assumed topreclude enforcement of state laws on the same subject.” Second, state laws are preempted when they conflict with federal law, including when they stand “as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

This result is both constitutionally sound and good policy. And it should keep other states from following Arizona’s lead and adopting similar legislation.

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  • Stevarious

    Scalia and Thomas’ opposition to this ruling should make clear (to anyone who wasn’t already in denial) that they have no interest in correctly interpreting the constitution and are only interested in furthering an agenda.

    This really really was an open and shut case.

  • Michael Heath

    My morning newspaper reported that the Supremes allowed the state’s law enforcement officials to continue to be obligated per state law to check for ID, which is the very fear non-white people have in the state of Arizona. However those state/local officers can’t take those people without their papers into custody, just hold them until the Feds show-up, if they respond at all.

    This report leaves some obvious questions unreported, like how long can state law enforcement officials hold brown people without papers until they have to let them go if the Feds fail to quickly show up and take these people into custody?

  • baal

    If the Supremacy Clause means anything it means that States can’t legislate treaties, patent rules or immigration policy. While AZ was clearly afoul of the concept, I did think there was a small chance the SCOTUS would have upheld it. They have been bizarre (in a legal sense) for the last 2 years in particular.

    The remaining provision, can be summed up in the terms of the OG FPS Castle Wolfenstein as, “Aus Weiss”.

  • TGAP Dad

    Where was Kagan? Did she recuse herself? Was she not present for oral arguments?

  • daved

    Kagan recused herself, I think because she’d been involved with the case as Solicitor General.

  • ttch

    Maybe Arizona’s judges will now be encouraged to take the position that people in the country illegally are not eligible for bail, even for minor offenses?

    That wouldn’t be a penalty per se. Wouldn’t even have to be codified into law.

  • Gregory in Seattle

    The purpose of these laws was to allow uniformed thugs to harass anyone suspected of being Latin@. The meat of the act was the “papers, please” provision; all the Court said was, “No gravy.”

    This is a win so much as a Pyrrhic victory.

  • Paul Neubauer

    Anybody see who wrote the court’s opinion?

  • dogmeat

    The civil rights question of racial profiling is still open to adjudication, so the checking papers and detainment section may go down as well. From what I’ve read locally, the argument is that the obvious profiling aspect of the law hasn’t really been supported with evidence because it hasn’t gone into effect. Given the way the law is written, it will be a pretty obvious case of profiling and should be overturned as well.

  • gogogone

    It strikes me funny that the liberal members of the court would have upheld any of the provisions of the law even with the caveat. What I really think happened, and this is pure conjecture on my part, is that Kennedy as the swing voter convinced the liberals (and Roberts) to this approach, if they did not sign on, he would take his vote and likely Robert’s to the conservatives with the result being striking down the whole law. Again, only conjecture but I feel there was a lot of nuance here. Will be interesting to see how Health Care turns out in light of this decision. It was also very unfortunate that Kennedy/Roberts did not break with campaign finanace when given the chance.

  • slc1

    This ruling has been misreported in the lamestream media. The impression has been given that the Court ruled the 4th provision to be constitutional. Apparently, that was not the case. The court did not rule on the constitutionality of the 4th provision but sent the case back to the state court for further review.

  • jakc

    Thanks slc1. The papers please provisions are the most worrisome, and this doesn’t strike me as a great victory if those stand up.

  • D. C. Sessions

    And of course one of the first comments on the ruling was for the impeachment of President Obama for challenging the law.

  • eric


    The papers please provisions are the most worrisome

    Most immediately visible, maybe, but not the most worrisome. The most worrisome was AZ’s claim to be able to make their own immigration law.

    Now that that issue is settled with a solid ‘no,’ the lower courts must review the ‘papers please’ section in light of other federal immigration law and the fed’s desire to be the ones to set immigration policy. I have no idea what federal laws say (if anything) about the right to stop people and ask for proof of citizenship. But IF the feds say that such stops are part of their responsibility, my guess is the courts will defer to them and AZ will lose even on that fourth issue.

  • shockna

    Wait, so the “Papers, please?” provision just wasn’t ruled on? If so, that’s actually a bit of a relief. I was disappointed with the liberal justices ostensibly having decided to uphold one of the worst parts of the law.

  • mithrandir

    The purpose of these laws was to allow uniformed thugs to harass anyone suspected of being Latin@. The meat of the act was the “papers, please” provision; all the Court said was, “No gravy.”

    This is a win so much as a Pyrrhic victory.

    To reiterate what a few other commenters have already said, the gist of the ruling on the “papers please” provision was that the Court could not conclude from the wording of the statute that it was likely to be enforced in a prejudicial way. From the ruling:

    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. Pp. 19–24.

    I read this as “legally, we can’t assume Arpaio’s brute squad is gonna use this as a ‘driving while brown’ law – come back to us when they actually do.”

  • Ehn, it’s just something for them to point at and claim they’re not partisan after reinforcing Citizens United, and killing the Affordable Healthcare Act later this week, along partisan lines.

  • Chris from Europe



  • lpetrich

    One of Scalia’s arguments was that some Southern states had once passed laws restricting where black people can go.

    What does Clarence Thomas think about that?

    While we are dredging up old laws, why not laws against interracial marriage? Like Clarence Thomas having a white wife.

    Or laws stating that “papists” cannot hold public office because they are idolators who are subjects of a foreign power? Several colonies had laws like that.