Bench Memos

Today’s Ruling in the Arizona Immigration Case

Now that I’ve had some time to review the opinions in Arizona v. United States, I’d like to provide this high-level summary. I’ll refer to the four provisions of Arizona law at issue only very briefly and leave it to the interested reader to examine their details more carefully.

Justice Kennedy’s majority opinion, joined by the Chief Justice and Justices Ginsburg, Breyer, and Sotomayor, ruled that section 3 (penalty for failure to carry an alien-registration document in violation of federal law) (pp. 8-11), section 5(C) (misdemeanor for unauthorized alien to seek work) (pp. 12-15), and section 6 (state officers may arrest a person without a warrant if probable cause to believe person has committed an offense that makes him removable) (pp. 15-19) are all preempted by federal law.

As for section 2(B) (pp. 19-24), the provision that has received the most attention, Kennedy opines that it could be interpreted only to require state officers “to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released,” and, if so interpreted “likely would survive preemption—at least absent some showing that it has other consequences that are adverse to federal law and its objectives” (p. 23). On this basis, Kennedy concludes that the Ninth Circuit was wrong to enjoin section 2(B).

Justice Alito agreed with the majority’s holdings on section 2(B) and section 3 but not on section 5(C) and section 6, which two provisions he would have found not preempted.

In separate opinions, Justice Scalia and Justice Thomas disagree with the majority’s holdings on section 3, section 5(C), and section 6.

For anyone who entertains the hope that the majority’s ruling on section 2(B) makes the case some sort of significant victory for Arizona, I invite you to have your illusion dispelled by reading Justice Scalia’s dissent. As Scalia puts it in his final two paragraphs:

Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so. Thousands of Arizona’s estimated 400,000 illegal immigrants—including not just children but men and women under 30—are now assured immunity from enforcement, and will be able to compete openly with Arizona citizens for employment.

Arizona has moved to protect its sovereignty—not in contradiction of federal law, but in complete compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.


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