The Supreme Court Tries to Have It Both Ways on Immigration

Photograph by Mandel Ngan/AFP/Getty Images

There’s something for everyone to like—and hate—in today’s split Supreme Court ruling on Arizona’s anti-illegal immigration law. The court struck down three of the divisive statute’s provisions but upheld the most controversial: a requirement that police officers check the immigration status of people stopped for speeding or other violations if the cops suspect they’re in the country illegally.

The decision was neither a blow to nor a resounding affirmation of the 2010 law, which has sparked national debate and copycat legislation in five other states, including Alabama, Georgia, South Carolina, and Utah. The decision provides clear instructions to any other place considering similar bills: Checking a person’s immigration status during a traffic stop is O.K., but making it a crime to gather on street corners in search of work isn’t.

The three sections the justices struck down made it a misdemeanor for illegal immigrants to seek work and to fail to carry identification documents, and allowed officers to detain, without a warrant, people they suspect of being illegal aliens. Justice Anthony Kennedy, writing for the majority, agreed with the Obama administration’s argument that regulating immigration is the job of the federal government and that Arizona had overstepped its authority in those three provisions. “This would allow the State to achieve its own immigration policy,” Kennedy wrote. “The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed. This is not the system Congress created.”

Yet the court stopped short of striking down Section 2B, the mandate to look into people’s immigration status if they are pulled over, so long as the officer has “reasonable suspicion” that the person is in the country illegally. The Obama administration said that forcing officers to do the status checks went over and above what Congress intended and also argued that the policy would lead to prolonged detentions of innocent people. Kennedy disagreed: “The federal scheme,” he wrote, “leaves room for a policy requiring state officials to contact ICE [U.S. Immigration and Customs Enforcement] as a routine matter.” And Kennedy said he saw no evidence to conclude that prolonged detentions would take place.

The court didn’t take up civil rights groups’ concerns that “reasonable suspicion” is a de facto form of racial profiling. (Supposedly, race and ethnicity aren’t to be used to establish reasonable suspicion, but that’s hard to take seriously.)

Because the U.S. challenged the Arizona law before it had gone into effect, Kennedy advised caution to those who oppose and support such immigration bills: “There is a basic uncertainty about what the law means and how it will be enforced. At this stage, 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 creates a conflict with federal law.”

As states reconsider the impact of immigration laws, momentum is building for whoever wins in November to overhaul the system. In ordering the U.S. to stop deportations of young illegal immigrants recently, President Obama pushed immigration to the center of the national conversation. Though he failed to deliver on his 2008 campaign promise to pass comprehensive reform, Obama renewed his call Friday before an audience of Hispanic legislators. Even Mitt Romney, who rejected concessions for illegal immigrants just a few months ago, is now backpedaling. Unlike the Supreme Court, which can finely parse its opinions, Obama and Romney, in search of Latino votes, are now being called upon to take a stand one way or the other.

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