Yesterday the Supreme Court determined that portions of Arizona’s immigration law were unconstitutional under our federalism scheme. In particular, there were four provisions of the Arizona law that were challenged, three of which were overturned. All eight justices (Kagan did not participate) agreed that the provision requiring police officers to determine the immigration status of those they reasonably believed are here illegally was permissible. This was the most contentious portion of the law.
The other three portions—the creation of a new state crimes for filing to complete immigration documentation, the creation of a new state crime for applying for a job without documentation, and the ability for police officers to arrest anyone they believed were deportable—were overturned by either a 5-3 or 6-2 vote. The theory for all three was that it is the federal government’s prerogative to define immigration laws, and states have not retained any authority to govern that area. Only Scalia and Thomas would have upheld the entire law. SCOTUS Blog has a good “plain English” explanation of the ruling.
The best line comes from Justice Kennedy’s majority opinion: “Removal is a civil, not criminal, matter.” This principle has been blurred in recent years as new methods of enforcement have been tried, often incorporating local law enforcement. But it must be remembered that the failure to have proper documentation does not equate to criminal activity any more than driving without a driver’s license equates to reckless driving* or homeschooling without submitting the proper paperwork equates to educational neglect. And because the Federal Government treats it as a civil issue, it is problematic when the states try to convert it into a criminal issue. Justice Kennedy’s clarification on this point provides a much needed starting point for analyzing the immigration policy problems we face today.
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* Update: a reader has since pointed out that driving without a license--at least in some states--is a criminal offence. Furthermore, some aspects of illegal immigration, such as reentry after deportation and assisting another to enter illegally, are federal crimes. So this is not an entirely clear distinction in the law. However, I think the underlying distinction still holds even if it is blurred in the law. There is a fundamental conceptual difference between a lack of documentation and criminal activity.
"But it must be remembered that the failure to have proper documentation does not equate to criminal activity any more than driving without a driver’s license equates to reckless driving or homeschooling without submitting the proper paperwork equates to educational neglect." That just might be the best sentence I've read all day, Nicholas. =) I was thinking of commenting to Jeremiah that he would make a great legal writer, and then I noticed this article was written by you. =)
ReplyDeleteOf course, the major issue here was preemption, right?
Yes, preemption was the doctrine leading to the statute being tossed out. And honestly (although I read it quickly), Kennedy made a pretty good argument. I found Scalia's dissent interesting (in large part because when I debated immigration policy in high school my case was to have a semi-state set immigration policy--did you know the AOC, as well as some early caselaw, permited states to exclude legal aliens?), but I'm not sure he made as good of an argument. Immigration is a national, as opposed to a state, issue, and legally and politically it makes sense to only have one policy. And deportation in particular, as a civil act, needs to take into account all sorts of foreign policy issues that are beyond the scope of state authority.
DeleteInteresting. Nice and short summary at the SCOTUS blog too. If I was a bit braver, I'd read the whole Supreme Court opinion, but I haven't had dinner yet, and I don't feel like reading 96 pages right now. =) Thanks for taking the time to read the opinion and share your thoughts with us!
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