Arizona created its own immigration law in 2010. The federal government sued to declare this venture unconstitutional, arguing that the United States government, not Arizona, had the authority to set immigration policy.
The federal district court sitting in Arizona and the 11th Circuit Court of Appeals agreed, and enjoined Arizona from enforcing its new immigration law. June 25, 2012, the United States Supreme Court decided Arizona v. United States, 567 ___U.S.__ (2012), and the decision left the Arizona immigration law in tatters.
The federal government challenged four provisions of the Arizona law:
- Arizona made failure to comply with federal alien-registration requirements a state misdemeanor.
- Arizona made it a state misdemeanor for an unauthorized alien to work or try to work in Arizona.
- Arizona permitted state and local authorities to make a warrantless arrest of a person when the officer has probable cause to believe the person committed a public offense that makes the suspect removable from the United States.
- Arizona required officers conducting a stop, detention, or arrest to make efforts, in some circumstances, to verify the person’s immigration status with the federal government.
The Supreme Court’s majority opinion began boldly, establishing that the federal government controls the field of immigration policy, and struck down 1-3 of the contested provisions. But it hesitated at provision 4—the so-called “show me your papers” provision.
Importantly, the Court did not “approve” the “show me your papers” provision, as it has widely been reported. Instead, the Court avoided a decision.
Why? The Court reckons it must wait to see how Arizona actually uses the “show me your papers” provision. Suggesting that Arizona interpret and apply this provision with wisdom, prudence and restraint, the Court imagined that the “show me your papers” provision might just meet constitutional muster.
Five points about Arizona v. United States are particularly important.
- The members of the Court did not split along partisan lines. The majority included two Republican appointees, Justice Kennedy, who wrote the opinion, and Chief Justice Roberts, and three Democratic appointees, Justices Ginsburg, Breyer, and Sotomayor.
- The decision establishes that the field of immigration policy is controlled by the federal government. The Court expressly held that the States may not set immigration policy.
- The decision did not find any portion of theArizonalaw constitutional. It stuck down 3 provisions and did not decide the fourth.
- The majority opinion and the opinions written by Justices Scalia, Thomas and Alito underline their intense interest in the balance of power between the three branches of the federal government and balance of power between the federal government and the States
- The decision encourages speculation that at least a portion of Affordable Healthcare Act will not survive the week.
Justice Kennedy’s and Chief Justice Roberts’ agreement with the Democratic Justices in this case does not signal an end to the divide in this Court. Many things can be read into this alliance. But one thing stands out; the immigration opinion provided a platform for Justice Kennedy to elaborately explain the solid constitutional basis for the federal governments’ power to regulate immigration policy.
This could set the stage for an equally elaborate dissertation in the Affordable Care Act case about the relatively less sound basis for federal government to comprehensively regulate healthcare. Moreover, the opinions of Justices Scalia, Thomas and Alito on the Arizona immigration law, particularly as they address “federalism,” confirm the probability that they will find constitutional fault in the Affordable Care Act.
While the same may well be true of Justice Kennedy and Chief Justice Roberts, they remain less predictable, adding more drama to a Supreme Court decision destined to make history and profoundly impact all aspects of American healthcare.
Jack Edward Urquhart © June 26, 2012