Monday, June 25, 2012

SCOTUS and immigration

Here is the text of the Supreme Court's decision on Arizona et al. v. United States. My initial take is that this is devastating for those who support restrictive state laws. Everything is struck down except for status checks, more popularly known as "papers please." Even that, though, has a caveat:

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. Cf. Fox v. Washington, 236 U. S. 273, 277. This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.

So expect more lawsuits. Arizona Governor Jan Brewer calls that victory, but I doubt she really believes that. Despite all the rumors that the court seemed sympathetic to Arizona, this decision says that Arizona overstepped its constitutional bounds by a lot. Every state that copied SB 1070 will have to go back to the drawing board.

For North Carolina, where I live, I would guess this means the legislature will not move forward because the legislative leadership was waiting for a SCOTUS ruling before doing anything.


Alfredo 9:32 PM  

Jan Brewer needs some serious reality check.

Randy Paul 11:02 PM  

My wife is a naturalized US citizen who speaks English with an accent. If we're stopped in Arizona and she doesn't have ID with her, does she run the risk of being detained or deported? If so, is the state of Arizona then adding a burden to naturalized citizens (who, I hasten to add, attain their citizenship through swearing allegiance to the US as opposed to the rest of it who got it through an accident of birth) that native born citizens don't have>

Greg Weeks 7:16 AM  

The answer is she could potentially be detained. That's why it will be challenged immediately--SCOTUS just said state courts hadn't ruled sufficiently on it yet, and the ACLU already has a war chest.

Defensores de Democracia 4:47 PM  

Ignorance is very BOLD and very FOOLISH : Governor Jan Brewer hails as a Great Victory that Section 2(B) was approved by SCOTUS, but this section lacks teeth and the Federal Government may choose not to deport. Immigrant advocates inevitably will press civil rights challenges on an “as applied” basis.

SCOTUS Blog : Professor of Law Peter Spiro ( Specialist in Immigration ), Temple University. "Online symposium: Supreme Court (mostly) guts S.B. 1070" - the Court’s opinion in Arizona v. United States is mostly a victory for S.B. 1070’s opponents

Online symposium: Supreme Court (mostly) guts S.B. 1070
By Professor of Law Peter Spiro
June 25th, 2012

Some excerpts :

This is a nominally split decision, but the Court’s opinion in Arizona v. United States is mostly a victory for S.B. 1070’s opponents. Although the Court upheld the “check your papers” provision, it struck down three others that would have had much greater impact on the ground. Justice Kennedy’s opinion validates broad federal authority over immigration, allowing only marginal participation on the part of states. The decision will take a lot of wind out of restrictionist sails at the state level.


But Section 2(B) lacks teeth: it may require state law enforcement to make immigration status determinations, but there isn’t much that the state can do with determinations once made. The state can pass the information along to federal immigration authorities, who are then free to do nothing. In other words, Section 2(B) won’t result in anybody being deported. Justice Kennedy was, moreover, careful to keep the door open to subsequent challenges of Section 2(B) to the extent that it’s applied in an unreasonable fashion – if it were used, for instance, to justify prolonged detentions. By implementing Section 2(B), the state will buy itself little more than another round in court as immigrant advocates inevitably press civil rights challenges on an “as applied” basis.


The decision will cramp restrictionist efforts in state capitals, on top of growing headwinds from business constituencies. Washington presents other sorts of obstacles, of course. Perhaps this is the worst of both worlds for S.B. 1070’s proponents: no clear defeat to use as a rallying call with Congress, no clear victory to secure broad laws in other states.


Defensores de Democracia 12:14 PM  

SB 1070 : What the Majority Opinion in the U. S. Supreme Court accomplished is a grave juridical precedent of limitations and prohibitions for the States and more power for the Federal Government

The proponents of "State Rights" since the American Civil War should not be happy uncorking champagne to celebrate the verdict. Only an ignorant like Governor Jan Brewer can be elated with the bone that the Supreme Court threw to her.

Opinion recap: Immigration and judicial styles
Monday, June 25th, 2012

By Lyle Denniston, Reporter
Lyle Denniston has been covering the Supreme Court for fifty-fouryears. In that time, he has covered one-quarter of all of the Justices ever to sit, and he has reported on the entire careers on the bench of ten of the Justices. He has been a journalist of the law for sixty-four years, beginning that career at the Otoe County Courthouse in Nebraska City, Nebraska, in the fall of 1948. He is not an attorney.

Excerpt :

The outcome thus was declared in the opinion written by Justice Anthony M. Kennedy. In sum, that opinion barred Arizona from enforcing three provisions of its controversial anti-immigrant law, S.B. 1070, and put off a constitutional reckoning on a fourth provision. But beyond those bare conclusions, the Kennedy opinion was a strong victory for the notion that immigration policy, under the Constitution and federal laws, is for the federal government, not for the individual states, including those on the borders most affected by illegal entry.


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