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Supreme Court’s Ruling on Immigrants Will Redefine Policing and State Powers

| December 12, 2011

arizona anti immigration illegal immigration undocumented aliens supreme court law

Enough said.

The United States Supreme Court today agreed to rule on Arizona’s immigration law, the toughest in the country after Alabama’s. The outcome of the case will have vast implications in Florida.

Arizona and Alabama passed laws empowering local police to question people about their immigration status, including asking for individuals’ papers, and arresting those who fail to produce them. In other states, unless an individual is driving, and is therefore required to carry a driver’s license, people are required neither to carry identification nor to produce it to law enforcement officials if they choose not to, absent probable cause of criminal acts.

The Arizona and Alabama laws override those protections, though police are not allowed to simply stop someone for an immigration check. The immigration status has to be part of, say, a traffic stop or a DUI checkpoint. But immigration status can by itself become a reason for jail: “Any person who is arrested shall have the person’s immigration status determined before the person is released,” the Arizona law states.

The Obama administration considers such provisions illegal because they clash with federal law, which reserves immigration policing to the federal government. Arizona argues that its law is a supplement to federal law, not a conflict with it. The administration forced a stay on portions of Arizona’s law pending court rulings, and won its case in trial court and on appeal to the 9th Circuit Court of Appeals in April.

The Alabama law has not been stayed, and it’s only one of many that have been tailored after Arizona’s, which was due to go in effect last July. Georgia, Utah, Indiana and South Carolina have all passed restrictive immigration laws. Florida came close but its attempt fell apart in the last legislative session. Gov. Rick Scott wants to try again in the coming session next year. Alabama’s crackdown goes the farthest because it forbids undocumented immigrants from being educated in public schools, a provision that clashes with a 1982 Supreme Court decision (see below).

The Supreme Court’s ruling on Arizona’s law is due by the end of June, at the same time as its ruling on Obama’s health care reform law, making this court term one of the most consequential in eight years, when a series of rulings narrowed presidential power in wartime. The ruling on immigration law will potentially redefine local policing powers, either vastly expanding those powers to include immigration matters or narrowing them, at a time when close to 13 percent of the population of the United States is foreign born. In Florida, the proportion is 18.7 percent, or close to one in five, with 22.5 percent of the state’s population having Latino or Hispanic dissent. (In Arizona by comparison, 14 percent of the population is foreign-born.) Immigration advocacy organizations reject local policing of immigration status because it significantly heightens the potential for racial profiling.

The ruling will also go a long way to defining the reach–and limits–of federal powers in relation to state powers, placing the court in a position to rewrite the law on states’ rights. The court has been friendly to states’ rights, but it has been even friendlier to–or more adamant about–the separation of powers, and giving each branch of government its due, particularly the executive.

There are actually four provisions that the Obama administration is opposing in Arizona’s law. Aside from enabling local police to question any individual on his or her immigration status, Arizona’s law also criminalizes the failure of aliens to register with federal authorities. It criminalizes the act of working, or even looking for work, by undocumented immigrants, reversing the application of federal law, which forbids businesses from hiring undocumented workers but limits punishment for workers themselves to civil penalties. Finally, the Arizona law also allows police to execute arrests without warrants if police merely suspect that individuals have done something that could, under federal law, get them deported.

The Ninth Circuit declared all four provisions illegal, saying the Constitution reserves those powers to Congress alone. “We simply are not persuaded that Arizona has the authority to unilaterally transform state and local law-enforcement officers into a state-controlled (Department of Homeland Security) force to carry out its declared policy of attrition,” Judge Richard Paez wrote for a 2-1 majority.

The Supreme Court under Chief Justice John Roberts and his predecessor, William Rehnquist, has consistently expanded police powers, at times with the consent of one of the more liberal members of the court, Justice Stephen Breyer. But it has rarely ventured into immigration matters since the 1950s.

In 1982, a 5-4 decision overturned a Texas law forbidding state tax dollars from being spent on educating undocumented immigrants. The court found the prohibition repugnant to the 14th Amendment’s equal protection clause. The court specified that equal protection extends to individuals regardless of citizenship or immigration status. That decision is still debated, and would very likely been decided differently with today’s court.

The Ninth Circuit’s ruling is below.

Ninth Circuit Court of Appeals Ruling on Arizona Immigration Law

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15 Responses for “Supreme Court’s Ruling on Immigrants Will Redefine Policing and State Powers”

  1. Jojo says:

    Justice Elena Kagan recused herself from the case (Solicitor General when the United States decided to bring suit against Arizona in 2010) which raises the possibility of a 4-4 decision among the remaining justices and uphold the 9th Circuit’s decision for the United States. That’s not likely to happen.

    Alabama is considering reviewing their immigration legislation due to a lack of immigrants to harvest crops before the Winter weather sets in due to a shortage of workers’ who fled the Sate of Alabama.

  2. anon says:

    Seems like these folks want it both ways.

    They want laborers who will do work no others will do and for pay others won’t work for and can also be easily exploited.

    On the other hand they don’t want them here.

    I wonder if these states with these where are your papers laws ( sounds like slavery and having papers to prove ones freedom) also stop and frisk Europeans who over stay their work visas.

    Or do they only stop and frisk brown people?

    • Oneofthe10%whovoted says:

      We are all required to carry some sort of ID on us, did you know that.

      And I am frisked EVERYTIME I go to the airport. What’s the big deal?

  3. Prescient33 says:

    By law, all legal immigrants must carry their documentation (Green cards) with them at all times, and produce them as part of the identification process.
    Police do have the right to ask citizens and non citizens for identity during traffic stops and other infractions of the law, such as jay walking, shop lifting and up. (That is how they caught the OK bomber, for example.) Identifying oneself in such circumstance is not an option for you and me; nor should it be for illegals.
    To rely upon the 9th Circuit Court of Appeals to bolster an argument is to rely upon a shaky reed indeed, as it has the highest rate of reversal of all Courts of Appeal in the SCOTUS, including several severe rebukes for its failure to follow SCOTUS rulings.

  4. PCer says:

    This is definitely a situation where there is a lot of grey area. There are solutions, but most are not popular. I think we need to find ways to discourage the immigration from happening in the first place. Maybe putting things in place to keep people in their own nations, rather than coming here. On the other hand, without those laborers, who is going to pick crops? who is going to do the hard labor work? what will happen to prices/inflation when we have to hire Americans at minimum wage??? It is a big mess, but we need to do something about it.

  5. palmcoaster says:

    Unjust profiling is one of several implications of these new racist laws adding more prejudice still to the current bias. Example honest dark skin business owner Mr. Ferrena in European Village taken to jail by deputies, while letting white Lillie crook lying Newby, go loose. Besides the fact that the private prison business, sure already lobbying Scott and co., a la la AZ.:

    • Oneofthe10%whovoted says:

      Ferrena was arrested because of false charges of waving a gun, not because of the color of his skin.

      Why is it unjust to expect all to follow the laws and carry an ID? Every citizen in this country does it.

  6. Johnny Taxpayer says:

    Prescient33 is 100% accurate, green card holders, and non-resident visitors to our country are already required to have the green cards or passports on them at all times under federal law. The states, such as Arizona and Alabama are basically just empowering their state and local law enforcement officers to enforce federal law by adopting the parts they want enforced as state law.

    The Obama administration argues that immigration is the sole purview of the federal government and therefore states can’t enact laws that conflict with federal law. Which is correct, however none of these state laws actually conflict with the federal law, they conflict with the current (and past) administration’s policy on enforcing the federal law. The administration’s argument basically boils down to the following; Since we’ve (the Feds) made a policy decision not to enforce the immigration laws that are “on the books”, these newly enacted state laws conflict because the states will actually will enforce them.

    The Arizona law specifically does not impose any additional burden on an individual suspected of being an immigrant (be it legal, illegal, undocumented, or any other term) than the federal law already does. The only difference is Arizona will enforce the law, were the feds have not been.

  7. mike bencal says:

    State law, regarding undocumented immigrants, must be rationally related to an important state interest. However, Article IV of the US Constitution makes it clear that the laws of the federal government and not the state are supreme. There is ample case law stating that where the federal government is occupying a field the state’s can’t make their own laws. Immigration and foreign policy is best left with the one rule of the federal government not under 50 different laws of the states.

    • Oneofthe10%whovoted says:

      The feds are not enforcing their own laws. Last time I checked, they don’t have the right to pick and choose which ones to enforce.

      And I disgree about your view of states rights. Having hundreds of thousands walk across your border and use your services is an important national interest.

      It is the job of the federal government to protect our borders. They are not doing that.

  8. Some guy says:

    states should just make laws harsh on business who hire ILLEGALS and also have no aid for ILLEGALS in the way of drivers licens schooling free medical and the like . Also ALL Government paper work should only be in english if for nothing else to cut costs

  9. some guy says:

    should only be in English

  10. Kevin says:

    The immigration issue is mainly being narrated by the media to garner the favor of Hispanics to vote democrat– period! Otherwise, any rational person would recognize the need as well as the appropriateness of law enforcement to be able to request documentation when someone has put themselves into a postion that compelled the action. When I get pulled over for speeding and don’t have my license on me, there was always a problem. White as my skin is, the situation became elevated in seriousness. An additional ticket was given for failure to present my license.

    This is a contrived issue by progressive liberals in which to create an avalance of new democrat voters through this issue and other issues that go against the grain of honest, in-depth, reasonable, rational thought. All else is simply disingenuous commentators, similar in type to the ones glorifying the bum “occupyers”, causing millions in costs to taxpayers for their clean-up and support costs while in another breath disparaging Tea Party members.

  11. Jojo says:

    @ Kevin
    Are all Tea Party members as paranoid as you?

  12. Kip Duorcher says:


    since he is from african and has
    a post-colonial kenyan socialist plan for
    world domination followed quick by
    death to christians by his hoard
    of muslim warriors
    in the wings

    i like this

    If we don’t turn around soon we might get where we are going.
    Navajo swying

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