What the Court Decided About Immigration

Last Monday, the Supreme Court struck down three of the four challenged sections of Arizona’s anti-immigrant law, S.B. 1070. As usual, the media covered the event as if it were nothing but a pivotal game in a partisan play-off series, and went back and forth on whether this was victory or defeat for the Obama administration.

Don’t be distracted or confused. If you read the decision, the outcome is pretty clear: It’s a victory for people who want to see immigrants (documented or undocumented) treated fairly. It’s a defeat for anybody who wants the police to hound Hispanics out of Arizona.

S. B. 1070 was passed by the Arizona legislature and signed by Governor Jan Brewer in April, 2010. The Obama administration challenged the law in court before it could take effect, and a federal injunction has prevented Arizona from enforcing it until the case was settled.

Well, now it’s settled. Three of the four challenged provisions were struck down immediately:

  • Section 3 made it a state crime for a non-citizen to fail to carry documentation authorizing their presence in the country.
  • Section 5C made it a state crime for an undocumented alien to seek or accept employment.
  • Section 6 authorizes Arizona state police to arrest without a warrant any non-citizen who they have reason to believe has committed an offense that would make them deportable.

Justice Kennedy wrote the majority opinion, with Chief Justice Roberts and three justices from the Court’s liberal wing (Breyer, Ginsburg, and Sotomayor) concurring. Justice Kagan recused herself because she was in the Obama administration when the case was being prepared, and so might appear to have a conflict of interest. (Recusal decisions are up to the justices themselves. Liberal justices take these decisions seriously. Conservatives like Thomas and Scalia do not, even when money is involved.)

The reason Governor Brewer claimed victory and some liberals complained of defeat was that the Court did not strike down the fourth provision, 2B, which Justice Kennedy summarized like this:

Section 2(B) of S. B. 1070 requires state officers to make a “reasonable attempt . . . to determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Ariz. Rev. Stat. Ann. §11–1051(B) (West 2012). The law also provides that “[a]ny person who is arrested shall have the person’s immigration status de­termined before the person is released.”

This section is why S.B. 1070 became known as the “papers please” law. It conjures up visions of police harassing anybody with brown skin or an accent, and locking them up until they can prove they’re in the country legally. (You always go swimming with your passport, don’t you?) Such behavior is certainly in line with the expressed purpose of the law, which is to pressure undocumented immigrants until they “self-deport”. And I’m projecting here, but I’d guess that many S.B. 1070 supporters will consider it a bonus if legal Hispanic immigrants leave the state too.

So why didn’t the Court strike 2B down? Justice Kennedy’s reasoning shouldn’t give any comfort to the people who want to harass Mexicans. It all hangs on the timing of the case and on that phrase “reasonable attempt”.

The administration sued before the law went into effect, before Arizona police came up with enforcement guidelines, and before the state courts had a chance to rule on whether those guidelines follow the state constitution. Kennedy doesn’t want to assume that those people won’t do their jobs properly.

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.

Justice Kennedy could imagine state courts toning 2B’s interpretation down to something like this: As long as we’re holding you for something else already, we might as well check with ICE to see if you’re in the country legally, and if not, see what they want us to do with you.

However, Kennedy also envisioned an interpretation where police would hold brown-skinned jaywalkers (rather than just ticketing them as usual) or extend the detention of other suspects while waiting for immigration information, which (since the rest of the ruling established that immigration is federal territory) is none of their business anyway. Kennedy left little doubt that this would be seen as an unreasonable attempt to determine a person’s immigration status.

So the Court didn’t endorse 2B, it just let Arizona off with a warning. If 2B comes back to the Court as a racial profiling case with actual victims, it will get struck down then.

If you doubt that reading of the Court’s decision, think about this: None of the liberal justices felt the need to write a dissenting opinion. That should tell you who won.

Post a comment or leave a trackback: Trackback URL.


  • Dave Francis (@lostintaxes)  On July 2, 2012 at 11:44 pm

    With key questions answered by the Supreme Court over illegal immigration, our nation must now analyze the growing problem presented to us nationwide. We now have a fair indicator of what each sovereign State has the ability to do, regarding its own sovereignty provisions? Does the Supreme Court’s ruling reject the main aspect of Arizona’s S.D.1070? NO! It has given Arizona a right to control its borders. The courageousness of Arizona that daring to go against the Marxist, Socialist agenda in Obama’s administration, has been seen by most as ruthless grab on power. Attorney General, Eric Holder forever branded by the ‘Fast and Furious’ gun walking outrage and the senseless murder of U.S border agent Brian Terry will ever be on his conscious; if he has a conscious? This man, thirsting for absolute power decided to teach the Grand Canyon State a lesson and in turn, has turned the majority of law abiding Americans against the Obama administration for his actions.

    Arizona can now adopt its original statute; ‘ATTRITION THROUGH ENFORCEMENT’. So rather than take their chances in Arizona, I foresee hundreds of thousands of illegal aliens families fleeing, thereby adding financial torture to the nearest Liberal orientated states like California and Nevada. ILLEGAL ALIENS MUST BE SAYING TO THEMSELVES, “WHY BOTHER WITH A STATE, WHERE YOU COULD BE PULLED OVER FOR A TRAFFIC VIOLATION, WHEN YOU COULD EMPTY CALIFORNIA’S HAMPER OF FREE GOODIES? Hey! California gives free handouts of taxpayer’s cash, so why stay in that border state? Currently California is suffering from a $16 billion dollar deadfall deficit, because of a Liberal Mayor and lobotomized governor. They have been brought upon themselves, by a radical group of politicians who have more loyalty to countries south of the border, than an alliance to the U.S. Constitution. They have allowed the giving of huge amounts of taxpayers’ money to illegal nationals; even as far provide drivers licenses. Soon California and other members of our 50 state unions, will be crying foul? Those states will be monetary hurting even more as the evacuation begins from locations that espouse Arizona’s law. States as Alabama, Georgia, South Carolina, Utah that are already financially hurting from the influx of impoverished people, will adapt their statutes so as not to conflict with federal law.


    To really make life hash for illegal alien criminals, our spineless Republicans should assume these two bills without fail. Rep. Lamar Smiths bill ‘The Legal Workforce Act’ (H.R. 2885) better known by Americans as E-Verify. Judging by its success as currently a volunteer law, it has become a remarkable electronic program, which detects unauthorized non citizens hired, but then flagged and can only be resolved by stepping into Social Security offices. No illegal alien would dream of doing that, even if they are in possession of procured ID documents? Of course a mainstream Liberal press has carefully tried to demonize the E-Verify business checking Database?

    Second in line, but just as paramount in important is the BIRTHRIGHT CITIZENSHIP (H.R.140) amendment law. This disqualifies illegal alien mothers able to gain immediate acceptance of their unborn baby smuggled through ports of entry, either across the ocean or through our limited border fence defenses. Foothold children are costing $100 billions of dollars in welfare, cash payments, education and health care treatment. Only the obstacle of pro-illegal alien forces in the Democrat and Republican Party and stopping these bills from becoming the law of the land.

    What is that old adage, about ‘Those who cannot remember the past are condemned to repeat it’? Something like that?

    Therefore we must remove as many incumbents and any politician and retain the services of true TEA PARTY members. Otherwise whether Obama wins, we will just have a second term president ready ‘to Tax and Spend America into the toilet But then we have Mitt Romney and his crew of wealthy politicians, who could cause just as much trouble. The TEA PARTY is now part of the American ideology? Unlike Obama it believes in free will and an individual’s right to choose his own path. The TEA PARTY believes in a government to deal with the basic essentials of defense and so forth, but not getting involved in health care think most American have credence in this issue, as since when does any country other than the United States allow illegal aliens to come here, without true retribution-such as exacting it as a Felony. Wouldn’t you come here if the all you were going to be prosecuted for is a simple civil infraction? . In a new Rasmussen Reports national telephone survey finds that 58% of likely U.S. voters think the policies and practices of the federal government encourage illegal immigration for decades. What we need is a voter revolution against both political parties, because whoever gets in November will repeat the same laws as we have always had. Of course the Left now is crowing about ‘Voter Suppression’ that is far from the truth.

    All Americans want is a fair and Equitable election, because currently not? Non-citizens are voting and certain Democrats are allowing this to happen. Remember that large numbers of these people, who will vote for Obama, are those who are playing the welfare system, who want ‘Something for nothing’. I have a family to support, and I don’t want to support the poverty from banana Republics. We have our own disabled, veterans without homes and others; so why are we forced by federal mandate that our money should go to foreign nationals.

    JOIN YOUR LOCAL TEA PARTY and put an end to illegal immigration. Put an end to President Obama’s socialistic philosophy and that does not exclude Mitt Romney’s idea of a government. There are thousands of TEA PARTY chapters around the country involved with a new agenda for America. The TEA PARTY statement is securely seal the border; halt the ‘FOOTHOLD’ baby racket, sanctuary cities, dream acts and then talk about building a secure minded fair immigration system, not importing more poverty and foreigners that have to be supported with taxpayer money?

    This is the time when every American who believes in the ‘Rule of Law’ and steps forward to let their Senator or Congress person knows how you will vote. Tell the politician’s aide and that you want them to pass E-Verify and the Birthright Citizenship bills. Citizen voters should phone Congress at the central Switchboard at 202-224-3121. Insist YOUR CONGRESSMAN/WOMAN TO fulfill their obligation to the oath of office and stop pandering to the businesses that use cheap labor, or the Democrats who are overlooking illegal aliens who are voting. You have the empowerment of your VOTE to demand they sponsor these to policies or we are doomed to a future, without any restrictions to our out-of-control U.S. deficit.


  • By Necessary Measures « The Weekly Sift on July 2, 2012 at 1:25 pm

    […] What the Court Decided About Immigration. Flacks and fund-raisers tried to spin this in a variety of directions, but when you read the decision it’s clear that the Arizona immigration law went down. The immigrant-haters lost. […]

  • By Rage For the Machine « The Weekly Sift on August 20, 2012 at 1:45 pm

    […] Pennsylvania judge faced the same situation as the Supreme Court did in June when it allowed one part of Arizona’s papers-please law to stand: In order to strike down a law before it takes effect, a judge has to determine that […]

  • By Dissidents | The Weekly Sift on June 17, 2013 at 10:58 am

    […] most fascinating political surprises, Arizona Governor Jan Brewer (famous for the anti-immigrant “papers please” law S. B. 1070) succeeded in pushing Obamacare’s Medicaid expansion through the legislature. […]

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: