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


The Supreme Court has upheld the provision of Arizona’s S.B. 1070 that the Obama administration and the illegal-alien lobby most feared: Section 2, which reaffirmed the existing power of Arizona’s local police to inquire into someone’s immigration status if the officer has reason to believe that the person is in the country illegally. In upholding Section 2, the Court has vindicated the power of judicial review and of reason itself. The lower courts’ efforts to invalidate the patently constitutional provision became progressively more laughable as the case rode up the appeal circuit, culminating in the administration’s own tortured verbiage before the Supreme Court. Even the most liberal justices could not accept the contortions of plain meaning that the solicitor general and two Ninth Circuit judges (opposed by a powerful dissent from Ninth Circuit judge Carlos Bea) inflicted on congressional law in their desperate attempt to overturn the Arizona provision.

The administration hated Section 2 because it would throw into sharp relief its de facto amnesty for illegal aliens. Section 2 raised the specter of Arizona traffic cops, say, regularly being told that federal immigration authorities have no interest in detaining an unlicensed illegal alien who has just run a red light or is driving under the influence. However, now that President Obama has issued his own executive amnesty for over 1 million illegals, the administration should not be troubled at the prospect of being shown in yet another forum to be indifferent to immigration enforcement. But it continues to fiercely oppose Section 2 because it turns out that merely asking an illegal alien about his status has a deterrent effect that interferes with the open-borders agenda.

The Court also rightly rejected the lower courts’ premature granting of a preliminary injunction in a facial challenge against Section 2. The Court argued that the section needs to play out in practice to see if its enforcement raises any constitutional problems. Memo to the ACLU: Drop your racial-profiling suit against the section; you’re not going to get past this ruling.

The majority took official note of the harms done to Arizona by illegal immigration, citing Center for Immigration Studies research on the disproportionate rate of felonies committed by illegals in Maricopa County.

I am frankly flabbergasted, however, that the majority, joined by the otherwise dissenting Justice Alito, invalidated Section 3, which makes it a state misdemeanor to violate a federal law requiring legal aliens to carry their registration papers with them. The precedent relied on by the Court concerned a much more complicated state registration scheme that clearly added new requirements to the federal one. Unfortunately, the drafters of Arizona’s Section 3 appear to have needlessly given a pretext for invalidation by changing the federal penalties in the most trivial of ways: not including probation as a penalty and not allowing for pardons. These details of Section 3 were not relied on by the lower courts and have been given prominence by the SCOTUS majority as a bootstrap supplement to its rigid and overly broad reading of preemption doctrine.

A more interesting and plausible objection to Section 3 would arise only once the law was put into practice. If Arizona decided to fine or jail someone under Section 3 whom the feds wanted to ignore, it would be in conflict with executive-branch enforcement priorities. Finding a constitutional conflict in such a situation would require raising executive discretionary decisions about (non)enforcement of the law to the status of congressional statutes and executive regulations under preemption doctrine — an important issue that the majority ducks (and that Justice Alito claims must be resolved against the federal government’s preemption claim). Since the Court has overturned Section 3 on a facial challenge, however, we will not soon have a ruling on that question.