Politics & Policy

After Arizona

Looking at the Supreme Court’s decision about S.B. 1070.

What do you make of today’s Supreme Court ruling? What does it mean for Arizona and the rest of us? What is the state of immigration policy today? We asked some experts.


Days after the March 2010 murder of Cochise County rancher Rob Krentz, I was reporting a story from southeast Arizona along State Route 80, which straddles the New Mexico state line. Police lights appeared in my rearview mirror, and I pulled over to meet a deputy for the Hidalgo County (N.M.) Sheriff’s department. He half-grinned as he told me he’d clocked me at six miles per hour over the speed limit.

I knew what the grin meant: “We’re stopping everybody we don’t recognize, especially guys wearing Oxford shirts in ranch country. Hope you don’t mind the profiling.” I didn’t.

After he ran my license and found everything to be okay, we chatted about the recent passage of S.B. 1070. He told me the law had already had an impact. In that notorious smuggling area known as the Chiricahua Corridor, illegal immigrants and drug mules have a choice. They can stay on the Arizona side or jump east over onto the New Mexico side.

The deputy said the traffic had shifted significantly to New Mexico since the bill’s passage. In other words, it was working at the border — and remember, critics maintained it would have no impact on border crossings.

I heard the same message from Keith Graves, who worked for ten years as district ranger for the Coronado National Forest in Nogales, then for the Secure Border Initiative. He said the law began having an effect even before it was passed, because “it was getting highlighted in the news and that frightened them away.”

The lesson here is the same one we’ve learned from the beginning of our illegal-immigration nightmare: If you don’t enforce the law, they will come. Now, in spite of the Supremes’ ruling, it’s being reported that President Obama is going to decline many of the calls from Arizona reporting illegal aliens.

He took an oath to uphold the law. November can’t come soon enough.

— Leo W. Banks is a writer in Tucson.


The Supreme Court decision was a big victory for those of us who have long warned that state and local government overreach on immigration issues was not only bad policy, but unconstitutional. I was surprised neither by the decision nor by the fact that it was not a close vote, with both Chief Justice Roberts and Justice Kennedy voting with the majority. What the Court has said in essence is that it is the federal government’s responsibility to both enact and enforce immigration policy. Congress has abdicated that responsibility in refusing to pass immigration reform. Congress could in one fell swoop virtually eliminate illegal immigration if it passed free-market-based reform that provided employers with a legal way to obtain willing workers in jobs that Americans have shunned or in which there are not enough Americans with the requisite skills. Illegal immigrants don’t sneak across the border because they are too lazy to apply for legal permits to work; they do so because those permits are not available to those who do not have close relatives already here or are from countries whose quotas do not adequately satisfy economic demand.

While the Court struck down three of the four provisions being challenged as unconstitutional, backers of S.B. 1070 should read carefully the reasoning that allowed the one remaining provision to go forward. The Court did not declare this section of the law constitutional; rather, it said, in effect, that since the Ninth Circuit had enjoined the law from being enforced, the constitutional challenge at issue had yet to be established, namely whether the law would lead to unconstitutional discrimination. Arizona would be wise to ensure scrupulous adherence to the section of the law that prohibits racial profiling — a provision that was added after the initial passage of the law, thanks in part to efforts by the Center for Equal Opportunity.

— Linda Chavez is chairman emeritus of the Center for Equal Opportunity.


“When people are asked to show their papers, it brings back memories of Nazi Germany.”

This was the kind of all-too-common idiocy that greeted the passage of Arizona’s S.B. 1070. (This specific idiocy was emitted by Los Angeles city councilwoman Janice Hahn.) The provision in question, Section 2(b), requires police officers to check the status of suspected illegal aliens stopped in the normal course of their duties. Despite the many other provisions of the law, this was what the law was all about for its opponents, which is why they labeled it the “Show Me Your Papers” law. For most everyone, Section 2(b) was the Arizona immigration law.

This was also the provision that all eight Supreme Court justices upheld (Kagan recused herself). All eight justices — including Ginsberg, Breyer, and Sotomayor. This is why the ruling is an unqualified political win for immigration hawks. If even the former general counsel of the ACLU thinks federal law permits Arizona to check the status of suspected illegal aliens, one would have to say the open-borders cabal has been dealt a blow.

Legally, the ruling was a mixed bag. The other three provisions of S.B. 1070 that were the subject of the lawsuit were deemed to be preempted by the court majority, comprised of the three liberals, dithering Kennedy, and Chief Justice Roberts (who may have wanted to avoid a 4–4 split, which would have upheld the Ninth Circuit ruling that struck down all four provisions). These tools would have been useful to Arizona — making it a state crime for illegals to seek employment or to fail to carry their immigration documents would have enabled Arizona to prosecute illegal immigrants even if federal authorities refused to take custody.

Be that as it may, the Obama administration’s most high-profile anti-enforcement initiative has stumbled. The opponents of borders will continue their efforts — whether through further lawsuits against Arizona or amnesty-by-fiat for young illegal aliens. But Arizona’s governor, Jan Brewer, had it right when she applauded Monday’s ruling as “a victory for the rule of law.”

Mark Krikorian is executive director of the Center for Immigration Studies.


There are several ways to interpret Arizona v. United States, as there are actually several decisions within it. But one way to read it, and perhaps the most important way, is to first recall just how much was made of it by the president when S.B. 1070 became law in Arizona. His focus, like the focus of most of the Left, was Section 2(b) — the section of the law that required police officers to make “a reasonable attempt to determine the immigration status” of someone stopped for other reasons. Standing next to Mexican president Felipe Calderón, President Obama said S.B. 1070 could “subject” American citizens “to suspicion simply because of what they look like.” President Obama then allowed President Calderón to blast away at Arizona as well, with the Mexican president calling the law “discriminatory.” President Obama continued his campaign in what we might call Obama v. Arizona, and thus Obama v. the United States, for it seemed, through his campaign against what Arizona did with S.B. 1070, that he forgot Arizona was a part of the United States. Indeed, even his Department of State weighed in, putting Arizona’s law on par with the government of China and its human-rights abuses.

Far from having a discriminatory intent, as Presidents Obama and Calderón said, this law was found by the Supreme Court to indeed come from a reasonable and legitimate concern over “the consequences of unlawful immigration” that include an “epidemic of crime, safety risks, serious property damage, and environmental problems associated with the influx of illegal migration.” And, for all the alarums and excursions raised by Section 2(b), we also learned it was “inappropriate” to conclude it is preempted by federal law.

We learned one other thing, too: Unlike the president, the Supreme Court sees illegal immigration as a serious problem and still believes it is the purview of Congress and the rest of the federal government to do something about it. Not so long ago, Arthur Schlesinger taught that it is an “imperial presidency” that uses questionable executive power to ignore the will of Congress. One has to wonder what he would label a presidency that uses executive orders to actually change laws passed by Congress, as the president did less than two weeks ago. If Arizona cannot act in the absence of federal law enforcement, as we read today about other parts of S.B. 1070, something surely needs to be said about what a president can and cannot do in direct opposition to the federal law as passed by Congress. And that is where I believe the national discussion should go next.

— Seth Leibsohn is a fellow at the Claremont Institute and the co-host of Arizona Politics and Culture with Seth Leibsohn and Tom Brown.


This quotation from Samuel Dickinson comes from his October 29, 1884, address to the Religious Bureau of the Republican National Committee, a week before the 1884 general election. Its tone and message explains why the Republican party did not carry the Roman Catholic vote for another 110 years. There is a message here for those paying attention:

“We are Republicans and don’t propose to leave our party and identify ourselves with the party whose antecedents have been Rum, Romanism, and Rebellion.”

— Grover Norquist is president of Americans for Taxpayer Reform.


This was unquestionably a significant loss for the Obama administration, no matter how much they try to spin it as a win. After all, the Court upheld the core provision of S.B. 1070 that the Justice Department had challenged and the administration publicly attacked: the requirement that law-enforcement officials find out the immigration status of individuals they arrest or detain if they have a “reasonable suspicion” that the person is illegally in the U.S.

The other provisions that the Court threw out were relatively minor parts of S.B. 1070, regarding misdemeanor violations of the law by aliens who look for work or who don’t carry their registration documents as already required by federal law. None of these is as important in the overall scheme of things as Arizona’s ability to identify illegal aliens as such when they are being arrested for committing other crimes.

Administration officials claimed that the arrest provision of S.B. 1070 would interfere with their policies. Thus, the Court completely rejected the administration’s claim that regardless of federal immigration law and the immigration system set up by Congress, it can do whatever it wants based on its own enforcement priorities. This is the same argument that President Obama just used for his executive implementation of the congressionally rejected DREAM Act. 

President Obama was called to task by Justice Antonin Scalia on the government’s argument that Arizona’s law also interferes with the “scarce” resources available for enforcement. As Scalia pointed out in relation to Obama’s new executive DREAM Act, the “husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conducting as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonenforcement program envisions, will necessarily be deducted from immigration enforcement.”

Some may wonder what will be the point of Arizona’s checking on the immigration status of arrestees, since the administration is highly likely to simply tell the state to let illegal immigrants go anyway. Arizona should start publishing those statistics on a monthly basis. That is the kind of politically embarrassing information the administration was really trying to stop by suing over this provision.

Most of S.B. 1070 is now in place, even with the Supreme Court’s tossing out of three provisions. With Arizona’s win last year in U.S. Chamber of Commerce v. Whiting, it has all the tools it needs to make sure that employers in Arizona are not hiring illegal immigrants. Strict enforcement of that provision alone will cause the majority of those illegally in the state to self-deport, solving a substantial portion of the state’s immigration-related problems.

— Hans A. von Spakovsky is senior legal fellow and manager of the Civil Justice Reform Initiative at the Heritage Foundation.

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