The Supreme Court Monday critically wounded Arizona’s immigration law, striking down three key provisions and sending the message that [auth] federal law trumps state law on immigration. The court should have gone one step further and killed the law altogether by striking down the noxious “show me your papers” requirement, but even there it left the measure pretty much toothless and left open the door for further litigation.
The ruling is generally a victory for reasonable immigration policy, the Obama administration and many in the immigrant community. It also should mean that immigration policy and immigration reform need to be settled in the halls of Congress, not in the halls of state capitols.
Congress and the Obama administration need to get to work on that.
Arizona’s law was the result of understandable frustration with lack of change at the federal level, a frustration that’s felt in a number of states. Arizona’s answer was to try to impose a harsh crackdown on illegal immigrants and impose a law that superseded federal law. But the Constitution is clear; states do not have the authority to supersede or undermine federal law.
The high court recognized that Monday by gutting the Arizona law. It struck down provisions requiring all immigrants to obtain or carry immigration registration papers, making it a state criminal offense for an illegal immigrant to seek work or hold a job and allowing police to arrest suspected illegal immigrants without warrants.
Those provisions went beyond cooperating with federal authorities; they were an attempt to take over federal policy. And they put too much onus on the undocumented worker, not on employers who hire the worker.
The court did leave intact the provision requiring police to check the immigration status of someone they suspect is in the United States illegally. But since the police can’t arrest a person simply for not having papers, it substantially weakened the provision. The court also said that provision could see further litigation, which suggests that it, too, eventually could be struck down.
Still, by leaving the provision intact for now, the court leaves a wedge between law enforcement and the illegal immigrant community. If they believe they can be asked for papers any time, illegal immigrants are much less likely to report crimes or be willing to work with police.
Justice Anthony Kennedy, writing for the majority, said the law should be read to avoid concerns that immigration status checks could lead to prolonged detention or racial profiling. And it’s true that the law expressly forbids racial profiling.
But it’s still likely that racial profiling will rear its ugly head when law enforcement attempts to meet the requirements of the law. How many citizens carry with them proof of their citizenship? Even if it’s been reduced to a simple question, “Show me your papers” smacks too much of authoritarian regimes that like to keep their thumbs on their citizens.
Arizona Gov. Jan Brewer tried to put the best face on the ruling in a written statement by saying that the ruling marks a victory for people who believe in the responsibility of states to defend their residents. “The case for SB1070 has always been about our support for the rule of law.
That means every law, including those against both illegal immigration and racial profiling,” Brewer said. “Law enforcement will be held accountable should this statute be misused in a fashion that violates an individual’s civil rights.”
We hope so, but we’d prefer another ruling that ensures no racial profiling by striking down the provision.
In the meantime, Arizona and other states should pay attention to the gist of the ruling as spelled out by Kennedy: “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.”
So if you don’t like immigration policy, and there’s a lot not to like, tell Congress — not your state legislator.
The Milwaukee Journal Sentinel