A Respectful Dissent

by Shannen W. Coffin

I have to disagree with the house editorial on the Arizona immigration decision (and concur with the more measured views of my friend Ed Whelan), at least as it relates to the immigration verification provision of Section 2(B) of the Arizona legislation. The Court granted a temporary stay of execution for Section 2(B), but did not give much of a reason to think that it would survive the executioner’s axe. The Court upheld the immigration status verification provision against the facial, pre-enforcement constitutional challenge because it thought that Arizona authorities might implement the legislation in accordance with constitutional standards. The Court wasn’t ready to strike down the statute simply because it wasn’t sure how Arizona would implement the law.  

At most, the Court held that the statute lives for another day because of this possibility that the Arizona authorities will apply the statute in a relatively narrow manner: “However the law is interpreted, if §2(B) only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive pre-emption—at least absent some showing that it has other consequences that are adverse to federal law and its objectives.” But 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.” The Court explicitly noted, if not invited, future challenges to the law if Arizona didn’t stay on the straight and narrow:  “This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.”

This is, at best, a temporary “victory” for the proponents of state efforts to deal with illegal immigration within their borders. And it is likely to be a pyrrhic one. It is correct to acknowledge that the Court was unanimous in this aspect of the ruling, but whenever the four Democratic appointees (and Justice Kennedy, for that matter) agree with their more conservative colleagues on a controversial topic, you can bet that the agreement is a narrow one — and it was here.