Waiting for the Healthcare Decision

Well, the Supreme Court pulled a trick on us.  After creating the impression the Monday was the last day they could issue opinions for this session, they have postponed their opinion on Obamacare until Thursday.  In the meantime, however, they have left an opinion on the Arizona immigration law for us to chew on that should keep us quite busy enough until Thursday.

Combing through the somewhat stilted language of the opinion, what  happened was this.  Unauthorized presence in the U.S. is illegal, but not a crime.  It is penalized by deportation, which is a civil, not criminal, proceeding.  Knowingly hiring an illegal immigrant is a crime for the employer, but not the immigrant.  Only the federal government, not the states, has the power to deport.  State and local officials may report illegal immigrants and turn them over to federal authorities, but not deport them.  

Arizona passed a statute, known as SB 1070 (Senate Bill 1070) that did four things) that did four things:

(1)    It criminalized unauthorized presence in Arizona;

(2)    It criminalized any illegal immigrant holding a job;

(3)    It authorized state and local police to make arrests on immigration offenses;

(4)    It authorized state and local police who made arrests for non-immigration offenses to check the immigration status of the person arrested.

The federal government challenged all four provisions as unconstitutional infringements on the federal government’s exclusive power over immigration. 

Elena Kagan was disqualified from ruling on the matter because she had argued on it in the lower courts.   The remaining eight justices unanimously upheld the provision that state and local police could check the immigration status of people arrested for non-immigration offenses.  Justices Kennedy, Roberts, Sotomayor, Breyer and Ginsburg voted to strike down the other provisions.  (Justice Kagan would undoubtedly have joined them is allowed).  Justices Scalia, Alito and Thomas all dissented (in part) saying they would have upheld at least some of the other provisions.  These were their rationales.

The majority stressed the importance of exclusive federal control of immigration because it is so closely related to foreign policy. They emphasized the importance of giving the federal government wide discretion on decisions about who to deport.   They then explain that state law may be overridden (preempted) by federal law in three circumstances:  (1) a federal statute that expressly preempts state law; (2) federal rule so pervasive as to leave no room for the states (field preemption); (3) state laws that conflict with federal law, either by directly contradicting it, or by interfering with it. 

The majority then found that a state criminalizing unauthorized presence it the U.S. fell in the category of field preemption.  Only the federal government can regulate the presence of aliens in the U.S. or penalize violations.  Such a framework had been on the books since at least 1940.

The majority also struck down the provision criminalizing work by people illegally present in the state.  Its grounds for doing so were that the federal government had explicitly chosen not to criminalize such employment, but only to subject it to the civil penalties of denial of legal status and possible deportation.  Furthermore, the federal statute expressly forbids states from imposing any greater penalties on employers.  Once again, the majority appears to find field preemption. 

The majority also struck down the provision giving police authority to make arrests for suspected immigration violations on the grounds that it gave them broader authority to make such arrests than even federal immigration officials.  It further argued that our current immigration statute controls when state and local officials may arrest for immigration offenses.  This looks like a case of (3), state laws that conflict with federal law indirectly, by interfering with it.

Checking on the immigration status of anyone arrested, by contrast was allowed.  The reason given was that the method of checking was ask the federal immigration officials, and that such consultation is expressly authorized by the federal immigration statute.  It found that nothing in such express authorization was violated by making such consultation mandatory.  It did warn Arizona not to arrest people for traffic offenses just to check their immigration status, or to prolong detention too long after an arrest to run the check.  In short, it let this provision stand, but warned Arizona not to commit serious abuses under it, or it might hold such abuses to be unconstitutional.

Justices Scalia, Thomas and Alito issued dissents.  The dissents are placed in order (I assume) of seniority.  But I will go by order of intensity. 

The mildest dissent was by Alito.  He agreed that Arizona could not criminalize mere presence in the state because of field preemption.  He did believe, however, that the state could criminalize working in the state and authorize arrests for immigration violations.  Like the others, he said that the federal immigration statute expressly authorized states to ask federal authorities for immigration status on people arrested, and required the federal authorities to answer.  Requiring Arizona authorities to check the immigration status of anyone arrested must therefore be allowed.  He further said that the federal government’s only argument against this provision was that it had priorities on deportations, and that the Arizona authorities might ask for immigration status on someone they did not intend to deport.  Mere policy cannot preempt.  He would also allow a traffic stop to escalate into an arrest for an immigration offense, a position not shared by the majority.  He also agreed with the majority that Arizona cannot criminalize unauthorized presence in the state.  This has been the rule since the 1940’s.  By contrast, the Supreme Court had previously upheld a state statute criminalizing working in the state by illegal immigrants.  The current ruling was going against a previous precedent which Alito preferred to keep.  The fact that Congress expressly preempted any more severe state penalties on employers but not employees convinces Alito that more severe state penalties on employees is allowed.  He would also uphold the provision allowing Arizona police to make arrests for immigration offenses because it does not authorize arrests merely for unauthorized presence, for committing a deportable offense (i.e., a crime).  He also says that since state and local police are authorized to cooperate with federal authorities in making immigration arrests, the state and local police, and not just the feds, may take the initiative.  Although such authority could be carried out in an unconstitutional manner, Alito would require some evidence that it is carried out in an unconstitutional manner before forbidding it.

Thomas ‘s dissent is short and simple.  Nothing in the federal immigration statute forbids any of the Arizona provisions.  Therefore they are not preempted.  Scalia's dissent is so extraordinary as to require its own post.

I am left with mixed feelings about this opinion.  On the one hand, it is a humane opinion, seeking to prevent states from launching all-out campaigns of harassment and persecution against anyone who looks to Hispanic in order to persuade illegal immigrants to "self deport."  On the other hand, it shows a degree of deference to the federal government and presumption that the feds are always right that could be very uncomfortable in some other situation.