Arizona Immigration Law Partially Struck by High Court

Photographer: Matt McClain for The Washington Post via Getty Images

Maria Uribe of Phoenix with a cross outside the U.S. Supreme Court as she and others protest Arizona SB 1070. Close

Maria Uribe of Phoenix with a cross outside the U.S. Supreme Court as she and others... Read More

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Photographer: Matt McClain for The Washington Post via Getty Images

Maria Uribe of Phoenix with a cross outside the U.S. Supreme Court as she and others protest Arizona SB 1070.

The U.S. Supreme Court scaled back Arizona’s first-of-its-kind crackdown on illegal immigrants, striking down three provisions in a decision that asserts the federal government’s exclusive role to set immigration policy.

The ruling leaves intact, for now, the law’s centerpiece requirement that Arizona police check the immigration status of people they suspect are in the country illegally. Even so, the 5-3 decision took some of the force from that provision by invalidating parts of the law that would have given the state’s police more power to arrest people for immigration violations.

The ruling gives President Barack Obama’s administration most of what it sought when it sued to block the Arizona law. Supporters of the law said the federal government isn’t doing enough to crack down on an estimated 11.5 million people in the country illegally.

“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,” Justice Anthony Kennedy wrote for the majority.

The decision may undercut parts of similar laws in other states and will have repercussions for the November presidential election as Obama and Republican candidate Mitt Romney vie for Hispanic votes.

No ‘Patchwork’

Obama, in a statement, said the decision highlights the need for congressional action on a comprehensive update of immigration laws, not a “patchwork” of state rules.

“I will work with anyone in Congress who’s willing to make progress on comprehensive immigration reform that addresses our economic needs and security needs, and upholds our tradition as a nation of laws and a nation of immigrants,” Obama said. In the meantime, he said, “We must ensure that Arizona law enforcement officials do not enforce this law in a manner that undermines the civil rights of Americans.”

Romney said in a statement that the ruling “underscores the need for a president who will lead on this critical issue and work in a bipartisan fashion to pursue a national immigration strategy.”

The case bore similarities to the fight over Obama’s health-care law, with the administration clashing with Republican-controlled states. As with health care, the argument pitted U.S. Solicitor General Donald Verrilli against former Solicitor General Paul Clement, arguing for the states. The court is set to rule June 28 on the health-care law.

Police Checks

The Arizona provision that will go into effect, known informally as the “show me your papers” requirement, instructs police officers to check immigration status when they arrest or stop someone and have “reasonable suspicion” that the person is in the U.S. illegally.

Kennedy suggested that provision would be invalid if it caused police to hold people longer than they otherwise would. “Detaining individuals solely to verify their immigration status would raise constitutional concerns,” he wrote.

He said it was too soon to determine whether that would be the consequence. “There is a basic uncertainty about what the law means and how it will be enforced,” Kennedy wrote.

He said the ruling “does not foreclose other pre-emption and constitutional challenges to the law as interpreted and applied after it goes into effect.”

Invalidated Provisions

Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor joined Kennedy in the majority.

The justices invalidated criminal restrictions that would have barred those in the U.S. illegally from seeking work or being in Arizona without proper documentation. A third invalidated provision said police could arrest people they suspected were eligible to be deported.

Justices Antonin Scalia, Clarence Thomas and Samuel Alito each issued a partial dissent. Scalia and Thomas said they would have upheld the entire law, while Alito voted to back most of it.

“If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign state,” Scalia wrote. He took the unusual step of reading a summary of his dissent from the bench.

Justice Elena Kagan didn’t take part in the case because she played a role in the litigation as Obama’s top Supreme Court lawyer before her 2010 appointment to the court.

Work Permits

Obama said earlier this month his administration would halt deportation of some illegal immigrants who were brought to the U.S. as children and make them eligible for work permits.

Scalia took a shot at the president’s description of the new program as “the right thing to do.”

“Perhaps it is, though Arizona may not think so,” Scalia wrote. “But to say, as the court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the president declines to enforce boggles the mind.”

The Obama administration sued to challenge S.B. 1070, as the Arizona law is known, saying it encroached on the exclusive federal right to set immigration policy.

Today’s ruling is “a clear rebuke to Arizona and its attempt to create its own immigration law,” said Omar Jadwat, an immigration attorney with the American Civil Liberties Union, in a telephone interview. The ruling means that “states really have very little room to operate in this area.”

Governor Brewer

Arizona Governor Jan Brewer called the ruling a victory for her state while saying the law was likely to face additional legal challenges.

“Arizona is prepared to move forward to enforce this law that we have fought so hard to defend,” Brewer said at a news conference today. She said “racial profiling will not be tolerated” in implementing the measure.

The Supreme Court didn’t consider claims that the law will lead to racial profiling by police officers. That issue is part of a separate lawsuit being waged by civil rights advocates against the Arizona measure.

Marielena Hincapie, executive director of the Los Angeles- based National Immigration Law Center, said at a Washington news conference that her group and others will ask a court to block enforcement of the provision on checking people’s immigration status. If that fails, she said, her group will challenge individual instances of racial discrimination that may occur.

Republicans seized on the part of the law that the high court left intact, and used the ruling to renew calls for tighter enforcement. Senators John McCain and Jon Kyl, Arizona Republicans, said the ruling “appears to validate a key component” of the law.

State’s Frustration

“The Arizona law was born out of the state’s frustration with the burdens that illegal immigration and continued drug smuggling impose on its schools, hospitals, criminal justice system and fragile desert environment,” McCain and Kyl said in a statement.

California Representative Zoe Lofgren, the top Democrat on the House immigration subcommittee, said today’s decision “basically closes out most of the state-law provisions” and “is a message to any other state that this is not a route that they can take.”

Arizona’s law was the first of its kind when enacted in 2010. Since then, Alabama, South Carolina, Georgia, Utah and Indiana have all passed their own measures aimed at illegal immigration. All are facing court fights.

‘Yellow Light’

The ruling “sends a yellow light to Arizona and other states that they have to be careful in enacting immigration law provisions,” Stephen Yale-Loehr, who teaches immigration law at Cornell Law School, said in a telephone interview.

The case turned on the U.S. Immigration and Nationality Act, which says states may cooperate in enforcing federal law. The administration contended Arizona went beyond cooperation and was trying to implement its own immigration policy of “maximum enforcement.”

The administration said the state measure would undermine the federal government’s effort to give highest priority to illegal immigrants who threaten public safety.

Arizona argued it has the right to act because the U.S. government hasn’t done enough and said it doesn’t have to defer to federal priorities. The state says its 370-mile border with Mexico is the crossing point for half the nation’s illegal immigrants.

Arizona had 360,000 unauthorized immigrants in 2011, according to the U.S. Department of Homeland Security. During the last four decades, 12 million migrants came to the U.S. from Mexico, most illegally, according to a report by the Pew Hispanic Center, a nonpartisan research group in Washington. Net Mexican migration to the U.S. has now stopped and may have reversed, the report said.

The parts of Arizona’s law that were challenged have never taken effect. A divided federal appeals court blocked them.

The case is Arizona v. United States, 11-182.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editor responsible for this story: Steven Komarow at skomarow1@bloomberg.net

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