Court Issues Split Decision on Immigration Law
BY Joan Frawley Desmond
Register Senior Editor
July 15-28, 2012 Issue | Posted 7/6/12 at 3:47 PM
WASHINGTON — The U.S. Supreme Court issued a split decision June 25 in its long-awaited ruling on the controversial Arizona immigration law strongly opposed by the U.S. Conference of Catholic Bishops.
The court, voting 5-3, with Justice Elena Kagan abstaining, let stand the state’s requirement that Arizona law enforcement request proof of immigration status for anyone they arrest or stop if they have reason to suspect they are in the country illegally.
Writing for the majority in Arizona v. United States, Justice Anthony Kennedy stated that the provision could be understood as merely requiring law enforcement “to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released.” Under this interpretation, it “likely would survive pre-emption — at least absent some showing that it has other consequences that are adverse to federal law and its objectives.”
But the Supreme Court overturned two other provisions that criminalized an individual’s failure to carry documentation of immigration status or to possess work papers if they held a job here. A third provision was also struck down that permitted state officers to make an arrest without warrant if they suspected an individual had committed a deportable offense.
While the bishops’ conference welcomed the ruling as a generally positive step for vulnerable immigrant groups, constitutional scholars viewed the decision as a strong affirmation of the federal government’s role in setting immigration policy. Meanwhile, immigration activists argued that the surviving provision of the state law had barely passed muster and predicted that pending legal challenges would likely strike that down in the future.
“The national government has significant power to regulate immigration,” Kennedy wrote for the majority. “With power comes responsibility, and the sound exercise of national power over immigration depends on the nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse.”
“Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the state may not pursue policies that undermine federal law,” stated Kennedy, upholding the federal government’s power to pre-empt state policies on immigration.
Justice Kennedy noted that Arizona was understandably concerned about addressing the disproportionately high rate of crime associated with illegal immigrants, citing data showing that they constituted 8.9% of the population in the state’s Maricopa County but committed 21.8% of the felonies.
Kennedy was joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. The three remaining Catholic justices on the high court, Justices Antonin Scalia, Clarence Thomas and Samuel Alito Jr., would have sustained two or three of the provisions that were struck down.
The U.S. Conference of Catholic Bishops, long a passionate advocate for the rights of immigrants and for comprehensive immigration reform, issued a response to the ruling that signaled cautious optimism. The statement noted that the conference had filed an amicus brief in the case.
“While we are concerned with the court’s decision to lift the injunction on Section 2 (B) of the law, we are encouraged that the court did not rule it constitutional,” stated Archbishop José Gomez of Los Angeles, chairman of the bishops’ Committee on Migration, underscoring the fact that the provision could still be overturned in a subsequent legal challenge. “As we articulated in our amicus brief, the implementation of this provision could lead to the separation of families and undermine the Church’s ability to minister to the immigrant population.”
“We stand in solidarity with our brother bishops in Arizona as they prepare to respond to the implementation of this provision and its potential human consequences,” read Archbishop Gomez’s statement.
The Los Angeles archbishop vowed that the Catholic Church in the United States would continue to fight for humane and just reform of the nation’s immigration system. Congress, he asserted, should “assume its responsibility and enact comprehensive immigration reform.”
“The U.S. Catholic bishops across the nation will urge their state governments to not pursue laws such as in Arizona, but, rather, to pursue humane reform on the federal level,” Archbishop Gomez said. “Humane enforcement of our nation’s laws is part of any solution, but enforcement by itself, unjustly administered, only leads to abuses and family breakdown.”
Kevin Appleby, the USCCB’s point man on immigration policy, confirmed that the conference viewed the ruling as “a positive decision for us. Three harsh provisions were pre-empted by the federal government’s authority to set immigration law.”
As for the surviving provision, Appleby noted that the high court reserved the right to strike it down on other grounds in the future. “It was a warning shot across Arizona’s bow, saying, ‘If you implement this, it could be struck down.’ They said they didn’t have the evidence to rule on its constitutionality.”
Ed Whelan, the president of the Ethics and Public Policy Center, a Washington-based think tank, and a constitutional expert who writes commentaries on legal issues at the Bench Memos blog, stressed that the high court’s ruling reaffirmed the federal government’s dominant role in setting immigration policy.
“The majority found that the three provisions conflicted with federal law,” said Whelan. “The majority’s approach gives states very little leeway to compensate for the federal government’s ineffective enforcement of the immigration laws.”
Karen Tumlin, managing attorney of the Los Angeles-based National Immigration Law Center, said the advocacy group was “both heartened and disappointed at the same time. The court has said immigration is an area that is an exclusive federal domain that leaves little room for the state to engage,” said Tumlin in an interview.
At present, other legal challenges to the Arizona law brought by groups like the National Immigration Law Center are still wending their way through the courts, and Tumlin held out hope that the surviving provision will ultimately be overturned.
“We believe there is no way to implement this provision in a way that is race-neutral,” she charged. “There is no way to determine, based on sight and sound, who should be here and who should not.”
But for now, at least, Arizona Republican Gov. Jan Brewer welcomed the high court’s ruling as a “victory for the rule of law.” The ruling, she said, was also a victory “for the 10th Amendment [of the U.S. Constitution] and all Americans who believe in the inherent right and responsibility of states to defend their citizens.”
Added Brewer: “After more than two years of legal challenges, the heart of S.B. 1070 (the state law) can now be implemented in accordance with the U.S. Constitution.”
The Justice Department had filed suit to block the Arizona law, arguing that the federal government, not the states, had the right to make immigration law.
However, Mitt Romney, the presumptive GOP presidential candidate, has vowed that, if elected, he would “drop those lawsuits on day one” of his administration.
The Republican Party leadership has struggled to navigate the complicated politics of immigration reform, with deep divisions complicating the GOP’s stance on the issue during an election year. Romney’s recent speech to the National Association of Latino Elected and Appointed Officials (NALEO) was low-key and did not break new ground.
President Barack Obama has continued to draw strong support from Hispanics, who overwhelmingly supported him in the 2008 presidential election. But experts caution that this backing may not translate into a victory for the incumbent, as Hispanics will likely not play a role in deciding the outcome for crucial swing states.
This year, the Justice Department announced that it would focus on the deportation of illegal immigrants with criminal records and related violations and allow other undocumented workers to remain in the country.
Earlier last month, three days after 150 evangelical Christian leaders called for Congress to overcome gridlock and forge a bipartisan solution to immigration reform, Obama issued a temporary stay on the deportation of young people who were brought to this country illegally as children if they met certain conditions. Romney quickly issued a statement noting that it was not a permanent solution, but he did not directly attack the decision.
Justice Scalia, in his dissent from the majority, noted the president’s recent action as a source for further concern about confusing signals on U.S. immigration policy that have complicated the enforcement efforts of states struggling to deal with illegal immigration.
“After this case was argued and while it was under consideration,” he said, “the secretary of Homeland Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants,” wrote Justice Scalia.
“The president has said that the new program is ‘the right thing to do’ in light of Congress’ failure to pass the administration’s proposed revision of the immigration laws,” Justice Scalia noted. “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 federal immigration law that the president declines to enforce boggles the mind.”
After the ruling, the president and Romney, who was campaigning in Arizona, both expressed hope that Congress would act. “What this decision makes unmistakably clear is that Congress must act on comprehensive immigration reform,” Obama said. “A patchwork of state laws is not a solution to our broken immigration system; it’s part of the problem,” stated Obama, who echoed concerns that the provision sustained in the ruling might lead to racial profiling.
Romney’s response focused on the states’ frustrations with a broken immigration system.
“I believe that each state has the duty, and the right, to secure our borders and preserve the rule of law, particularly when the federal government has failed to meet its responsibilities,” said Romney.
Last year, soon after the Arizona law was passed, the bishops’ conference issued a statement attacking its provisions as “draconian.” Implementation of the law could result in the “wrongful questioning and arrest of U.S. citizens and permanent residents as well as the division of families, parents from children and husbands from wives,” read the statement issued by Bishop John Wester of Salt Lake City, then-chairman of the bishops’ Committee on Migration. “It certainly would lead to the rise in fear and distrust in immigrant communities, undermining the relationships between their members and law enforcement officials.”
In that statement, Bishop Wester echoed the Arizona bishops’ objections to the law: “This new law, although limited to the state of Arizona, could have impact throughout the nation, in terms of how members of our immigrant communities are both perceived and treated.”
But he acknowledged that the Arizona law “is symptomatic of the absence of federal leadership on the issue of immigration.” The U.S. bishops, he said, continue to urge “the administration and Congress to work in a bipartisan manner to enact comprehensive immigration reform as soon as possible.”
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