S.B. 1070’s Day in Court
The Arizona law wins some and loses some.

A pro-S.B. 1070 contingent outside the Supreme Court


In light of the majority’s rigid reading of preemption doctrine with regards to Section 3, it is not surprising that the Court also invalidated Section 5, which criminalized work by an illegal, and Section 6, which allowed the warrantless arrests of illegals for deportable offenses. Unfortunately, the demise of those sections does not bode well for the southern states whose immigration-enforcement laws went farther than Arizona’s in several respects.

Where are we left in terms of jurisprudence? At first blush, it is hard to find a coherent doctrine at play here. The Court previously upheld an Arizona law imposing additional penalties on employers who repeatedly and knowingly hire illegal aliens. In theory, the Court could reconcile that decision with its invalidation of the S.B. 1070 penalty against illegal workers, but a determined jurist could just as easily argue that Arizona’s employer law should be invalid as well under today’s reasoning.

The Scalia dissent is the only opinion to acknowledge the political context of the Court’s decision. The justice uses the Obama DREAM Act to presciently discredit what is being reported as the administration’s vindictive decision to suspend its 287(g) agreements with Arizona. (Those 287(g) agreements authorize local police officers to act as immigration agents in determining an alien’s status.) Department of Homeland Security secretary Janet Napolitano did officially whine on Monday about the burden that Section 2 will put on her allegedly straightened agency, an argument that the administration already unsuccessfully pressed to invalidate Section 2. Scalia points out that DHS has just voluntarily saddled itself with an enormous additional administrative load in inviting over 1 million illegal aliens to apply for amnesty; the department’s complaint that it cannot afford to work with Arizona in identifying and responding to illegal aliens within its border is therefore specious. 

Scalia’s dissent is also the most breathtakingly sweeping in its assertion of a historic and inherent state authority to police state borders, regardless of what the feds do or do not do, a position that has only been implicit in the defenses of S.B. 1070 up to now. It is a must read, one that raises the question for S.B. 1070 supporters whether their position ineluctably leads as well to Scalia’s radical federalism. 

As for the politics, we are back to square one. Obama is calling — surprise! — for “comprehensive immigration reform.” And Romney is calling for a “national immigration strategy,” whatever that means. At least Romney, after an hour or so of dithering about the opinion, has affirmed what he calls the “duty and the right” of states to “secure our borders and preserve the rule of law” — a covert defense of S.B. 1070. Until Romney spells out his intentions regarding federal immigration enforcement, however, it is not yet possible to know how a vote for Romney will alleviate the country’s problems with illegal immigration.

After the oral argument in Arizona v. U.S., open-borders advocates asserted that S.B. 1070 was irrelevant, since the rate of growth in the illegal population had slowed to a bare trickle. The policy of enforcement by attrition, which S.B. 1070 adopted, was no longer needed, the advocates argued. That claim is dead wrong. One reason why growth in the illegal population has slowed is the mere possibility of state enforcement. Law enforcement works, even if it is only threatened. That means that every state that cares about reducing the costs of illegal immigration should now adopt its own counterpart to S.B. 1070’s Section 2.

 Heather Mac Donald is a John M. Olin fellow at the Manhattan Institute and co-author of The Immigration Solution.