TOPICS > Politics

Supreme Court Upholds ‘Most Controversial Part’ of Arizona’s Immigration Law

June 25, 2012 at 12:00 AM EDT
According to the Supreme Court, Arizona police may still stop people they believe to be illegal immigrants, but cannot arrest them without a warrant. The National Law Journal's Marcia Coyle, Kansas Secretary of State Kris Kobach and law professor Steven Gonzales weigh in on the ruling.

JUDY WOODRUFF: The U.S. Supreme Court delivered its judgment today on the 2010 Arizona immigration law that sparked a national debate. The outcome left both sides claiming at least partial victories.

The decision came after two years of protests and legal challenges to the Arizona law, then the April arguments before the Supreme Court, today, the decision,5-3, with Justice Elena Kagan recusing herself because she worked on the issue in the Obama administration.

The court ruled Arizona may not force immigrants to carry immigration papers or make it a crime for an illegal immigrant to hold a job or let police arrest suspected illegals without warrant.

But the justices upheld a provision that requires police to check the immigration status of anyone they stop for other reasons. Arizona’s Republican Gov. Jan Brewer called the decision a victory for the rule of law. And she insisted it will be properly enforced.

GOV. JAN BREWER,R-Ariz.: Civil rights will be protected. Racial profiling will not be tolerated. Senate Bill 1070 is equally committed to upholding the rule of law, while ensuring that the constitutional rights of all in Arizona are protected.

JUDY WOODRUFF: President Obama issued a statement saying he was pleased the court struck down much of the law, but remained — quote — “concerned” about the verification provision.

“No American should ever live under a cloud of suspicion just because of what they look like,” the president said.

The president didn’t speak about the court decision directly as he campaigned in New Hampshire this afternoon. His Republican challenger, Mitt Romney, said today he’d have preferred that the court give states more latitude.

He also issued a statement that said in part, “Today’s decision underscores the need for a president who will lead on this critical issue and work in a bipartisan fashion to pursue a national immigration strategy.”

The court decision followed the president’s recent move to curtail deportations of illegal immigrant children. Justice Antonin Scalia criticized that step in his comments from the bench today.

Marcia Coyle of The National Law Journal was at the Supreme Court when today’s decision was announced, and she joins us now.

Hello again, Marcia.

MARCIA COYLE, The National Law Journal: Hi, Judy.

JUDY WOODRUFF: So it was a split decision. And just to be clear, part of the Arizona law was upheld. All the justices who voted — and Justice Kagan had recused herself because she was in the administration.


JUDY WOODRUFF: The justices who voted all agreed that this one element in the Arizona law that has to do with asking people to provide papers, they all agreed that part will stand for now.

MARCIA COYLE: That’s correct, Judy.

And that’s the most controversial part — the most controversial provision that came before the Supreme Court. And as you recall, there were four provisions. This provision that was upheld requires police in the course of a legitimate stop, if they have a reasonable suspicion that the person they have stopped may be illegal, to ask for some proof of citizenship and also to verify the status of that person by contacting federal immigration officials.

JUDY WOODRUFF: And why where the justices fine with that provision?

MARCIA COYLE: Justice Kennedy, who wrote the majority opinion today, explained that consultation between federal and state officials is a very important part of the federal immigration scheme.

In fact, he said Congress has required federal immigration officials to respond to state officials’ requests for information. So he didn’t find in this provision that the state provision conflicted with federal law, that it intruded on the federal scheme. He saw it as more complementary.

He did say, however, that he recognized there are concerns about this provision. The government had worried about prolonged detention of American citizens. Verifying your status is not something that is either simple or quick. But Justice Kennedy said that, at this moment, this provision has never been enforced. And without seeing how it actually operates and without a definitive interpretation of the provision by Arizona courts, he wouldn’t say that that it is trumped by federal law.

JUDY WOODRUFF: And, as you said, that is the most controversial piece of the law. And there was in all the analysis today speculation that there will continue to be legal challenges to this part

MARCIA COYLE: Yes. In fact, there is a pending lawsuit in Arizona that challenges the law on racial profiling grounds, equal protection grounds.

JUDY WOODRUFF: Now, meanwhile, Marcia, the court ruled, however, that the other three features of the law will not stand. Tell us about that rationale.


When the court is doing a preemption analysis, that is, when it’s trying to determine whether federal law trumps state law, it’s really looking for three things. Does the federal law expressly say, state you cannot legislate? Does the state law conflict with the federal law? And has Congress so comprehensively legislated in a particular area that there’s no room for the state law?

So Justice Kennedy went through each of the three remaining provisions and found that they either conflicted with federal immigration law or Congress had created a comprehensive scheme.

For example, the provision requiring or making it a right for an illegal alien not to register or carry papers under the Arizona law, Justice Kennedy said Congress has created a comprehensive and unified system of tracking illegal aliens in this country, and so it was preempted because Congress had occupied the field.

JUDY WOODRUFF: So, three provisions were knocked down, three elements of the law. But there was a dissent. Three of the conservative justices argued that they disagreed, said they disagree.

MARCIA COYLE: Yes. Justices Scalia, Thomas and Alito wrote separate dissents.

Justice Scalia pretty much carried the dissenters’ ball today. He read a summary of his dissent from the bench. And basically he said that states have always been considered sovereign entities. And it is inherent in sovereignty that you have the power to exclude from your territory people who don’t belong. And if Arizona can’t do what it wants to do here, then he said we should stop talking about states as sovereign entities.

The other thing he pointed out was he disagreed with many of the government’s arguments for preempting the Arizona law. For example, the government had said…

JUDY WOODRUFF: The federal government.

MARCIA COYLE: The federal government. I’m sorry.

The federal government had said it was important to be able to allocate scarce resources in immigration enforcement. And that’s when Justice Scalia mentioned President Obama’s recent program for allowing the children, young people of illegal aliens to remain in the country temporarily.

Justice Scalia said he was sure that the administrative costs of that program would be great and would take away from enforcement of immigration law. And he said it boggled the mind to say that Arizona law conflicted when Arizona was implementing an application of federal law that the president had declined to enforce.

JUDY WOODRUFF: It’s interesting. So that wasn’t a part of the case, but he included that in his comments.

MARCIA COYLE: Absolutely. It was very unusual. It wasn’t a part of the case. It wasn’t heard at all during oral arguments. It actually happened after the case was over.

JUDY WOODRUFF: Marcia Coyle, and we’re going to be coming back to you a little later.

MARCIA COYLE: OK. Thank you.


GWEN IFILL: Now, for more reaction on today’s decision, we’re joined by two legal experts who’ve been following the case closely, Kansas Secretary of State Kris Kobach, who helped draft the Arizona statute, as well as similar laws in other states, and Steven Gonzales, a constitutional law professor at the Phoenix School of Law in Arizona.

Kris Kobach, we have heard both sides here, as it were, claim victory based on this ruling, kind of the split decision out of the Supreme Court, as it were. What is your thought about that? Was this stop-and-check provision that was upheld, was that the heart of the law, in your opinion?

KRIS KOBACH, Kansas Secretary of State: Yes, I think so. It is certainly part of the law that has the greatest scope, so when Arizona claims victory, I think that’s correct. It’s a qualified victory for the states, the part that has the greatest reach.

Put it this way. That provision will kick in, in thousands of law enforcement stops every day throughout the state of Arizona. So it has a great reach. The other provisions are less significant, for example, the part criminalizing the illegal seeking of work.

That’s only going to be relevant if a county launches an investigation of a particular employer, and then they discover certain unauthorized aliens who have broken that law. So, it’s much narrower. The big one was the one that was upheld today. And I think that’s going to give a green light to other states who — some states have already copied that provision of Arizona law.

And there are additional states that probably will try to do so in January in 2013, when the legislative sessions begin again.

GWEN IFILL: Steven Gonzales, what is your sense? Was upholding that one part of the statute, did that mean that the rest of it, all the things that were struck down were less significant?

STEVE GONZALES, Phoenix School of Law: No, I don’t think so at all.

And in fact I would characterize this as an old-fashioned smackdown by the Supreme Court against a state intruding on federal power. A careful reading of the opinion shows that, as was said, three of the important provisions were completely struck down by the Supreme Court as unconstitutional.

The one remaining provision, actually, the door is still open that it may be unconstitutional. What the court actually said was that it’s premature to determine at this time if it’s unconstitutional because the state courts haven’t even ruled on it yet.

So, one, it can still be challenged once it’s interpreted by the state’s courts. And, two, even if it’s upheld on its face when it goes back to the state courts eventually for interpretation, it can still be struck down for being applied unconstitutionally, that is, in a manner that is violating the civil rights of thousands and thousands of people, mostly Latinos, in Arizona.

GWEN IFILL: Well, can I ask you about that? Well, can I jump in and ask you about that?

This was — that part of the argument, as Marcia just mentioned, never really came up during the Supreme Court arguments, the idea that it was a constitutional challenge to the racial profiling aspects of this.

STEVEN GONZALES: Right. It hasn’t come up…

KRIS KOBACH: There’s a reason why that never came up.


GWEN IFILL: I will get back to you on that, Mr. Kobach.

But, first, professor?


In my view, in reading the opinion, the court simply left the door open and said that it may be unconstitutional. And it’s my understanding that plaintiffs’ counsel are already in the process of gathering data. That’s exactly what they’re going to try and show, is that it cannot be enforced constitutionally, or, once it starts to be enforced, they’re going to try and gather data showing it just is being done in an unconstitutional manner.

Let me give you an example. You stop somebody and ask them if they are here illegally or can they prove they’re here legally, should you hold them for five minutes, 10 minutes? What if they don’t answer, four hours? At what point do you violate the constitution? And keep in mind this may be an American citizen.

GWEN IFILL: Let me ask Mr. Kobach why he thinks it didn’t come up.


KRIS KOBACH: The reason it didn’t come up is because the U.S. government when suing Arizona didn’t make that argument about racial profiling.

And the reason they didn’t make it is the law in four different sections expressly prohibits application of the law differently to a person whether based on his skin color, his national origin or his ethnicity. The law forbids racial profiling.

The Department of Justice knew that that argument would get nowhere in a facial challenge. And if in the future you had a bad apple police officer who was trying to racially profile, he would be breaking SB-1070, he would be breaking the law. And so his actions wouldn’t in any way indict the law. The bottom line is…


GWEN IFILL: I’m sorry. I just wanted to get back to what you’re an expert at. One of the things is that you helped draft these laws…


GWEN IFILL: … not only for Arizona.

What is it — how do you walk the line that the court laid out today, which is a law that can — that complements federal law, but doesn’t supersede it, as the court said so much of the Arizona statute did?


Well, we now have some clear guidance from the court. We know that the arrest provisions of Section 2-B, the main provision we have been talking about here, those are perfectly fine. We have got a number of other states that have already implemented them and are in circuit courts right now.

There are a bunch of states waiting in the wings to do the same thing. Those can move ahead. If a state wanted to do the criminalization of seeking employment, the Supreme Court has said no.

And one other thing that is really important about this opinion, the court clarified what I have been arguing all along and I think most people who follow this specific area of preemption law know. And that is there have always been windows of opportunity where states can act as long as those actions are consistent with federal law.

And the court reiterated that today. They said, in our federal system, the courts can take certain steps to discourage illegal immigration and communicate and assist with the federal government, assist the federal government in enforcing our immigration laws. And the court reiterated that today. So, I think you’re going to see states continuing to take reasonable steps to try to rebuild the rule of law.

GWEN IFILL: Professor Gonzales, in your sense, what is your sense of how wide open that window of opportunity is now based on what the court did?

STEVEN GONZALES: I think it’s a very narrow window that the state — that the court has left for the states.

The provision that’s left standing — and that can be still be challenged in the future — simply allows police officers to inquire about the status of someone. If they contact the federal government and the government says, we’re not interested or the line is busy, there’s nothing they can do. It’s a law without any teeth.

The bottom line here is the court has come down very strongly against the state interfering with federal power. And I hope it’s a sign that the politics of division, of attacking and separating humanity here in the United States is — has seen its last day.

GWEN IFILL: Mr. Kobach, how much did the court today impinge on state sovereignty in making this decision, in siding with the federal government that there’s only so far that states can go on these matters?

KRIS KOBACH: Well, let me first respond to the professor’s comment about impinging on humanity or somehow impugning a person’s humanity.

This law simply is about enforcing the rule of law and allowing state and local governments to provide a reasonable amount of help when they’re in the course of their normal duties. There is no disrespect for a person’s humanity by simply saying we have certain laws in this country and we simply want to inquire as to whether you’re here legally.

As far as diminishing states’ rights, there is one aspect that I would certainly concede in the majority opinion that says — what the court did is they looked at Congress acting in 1986 when Congress criminalized the employment of an unauthorized aliens, when you have a large number of unauthorized aliens or you have a pattern and practice.

And the court said, well, we’re going to read into what Congress did. We’re going to look at what Congress didn’t do. And we’re going to read into Congress’ decision not to criminalize the employment — the actions by the employee. And we’re going to say that inaction by Congress preempts the states as well.

I think that was a troubling part of the opinion because, you know, when you have inaction by Congress, 99 percent of the time they’re not passing something, and you start drawing conclusions from congressional inaction, then you potentially can displace the states in a way that the framers never intended.


GWEN IFILL: Well, that takes me to my final question for you both, if you don’t mind being brief about it. But what is Congress’ role now? What did the court do which makes — does it put more pressure on Congress or does — is Congress free now to wash its hands of this whole debate, starting with you, Professor Gonzales?

STEVEN GONZALES: Well, I think you hit the nail on the head there. That’s been the problem all along is that Congress has been — reflected the polarization in this country.

It has failed to act, and — but just because Congress has been deadlocked politically doesn’t somehow transfer immigration power to the local level.

GWEN IFILL: Mr. Kobach?

KRIS KOBACH: Well, certainly Congress can and should take certain actions.

I think Congress should, for example, follow Arizona’s 2007 law that was upheld by the Supreme Court last year requiring E-Verify for all employers in the state. We should have that nationally.

But on the other hand, I would say there are a lot of things we could do to improve our enforcement of the laws. People always say, the system is broken, the system is broken. Well, not exactly.

Some aspects are, but there are plenty parts of the system that work just fine, but we lack an executive branch right now that wants to enforce the law.

GWEN IFILL: Kris Kobach, the Kansas secretary of state and author of that Arizona law, SB-1070, and Steven Gonzales, professor of the Phoenix School of Law, thank you both for joining us.


KRIS KOBACH: My pleasure.