SCOTUS: Split decision on SB1070

The Supreme Court upheld part of Arizona’s controversial immigration law, Senate Bill 1070, in a split decision issued this morning. Arizona v. United States, slip op. (U.S. June 21, 2012) (Kennedy, Roberts, Ginsburg, Breyer, and Sotomayor, JJ.). Justice Kagan did not participate in the decision.

Unlike much of the media’s focus on whether SB 1070 is good policy and its impact, the justices focused on whether Arizona’s law is preempted by the Constitution’s Supremacy Clause. Any provision deemed preempted is unconstitutional because, under the Supremacy Clause, federal law trumps state law.

As a recap, only four provisions of SB 1070 were before the Court:

• Section 2(B) which requires that police officers check the immigration status, where practicable, of all people stopped, detained, or arrested “where reasonable suspicion exists that the person is an alien and is unlawfully present” and “requires officers to verify—with the federal government—the immigration status of all arrestees before they are released, regardless of whether or not reasonable suspicion exists that the arrestee is an undocumented immigrant.” United States v. Arizona, 641 F.3d 339, 347 (9th Cir. 2011)
• Section 3, which, the Ninth Circuit explained, “essentially makes it a state crime for unauthorized immigrants to violate federal registration laws.” United States v. Arizona, 641 F.3d 339, 355 (9th Cir. 2011)
• Section 5(C), which makes it a state crime for an undocumented person to apply for, solicit, or perform work in Arizona. United States v. Arizona, 641 F.3d 339, 357 (9th Cir. 2011)
• Section 6, which permits warrantless arrests if probable cause exists that a suspect “has committed any public offense that makes the person removable from the United States.” United States v. Arizona, 641 F.3d 339, 360 (9th Cir. 2011).

Today’s opinion concerned Arizona’s attempt to overturn a preliminary injunction granted against these provisions.

The Court determined that §§ 3, 5, and 6 are unconstitutional, and that § 2(B) is constitutional.

Scalia wrote separately. He would have upheld all of SB 1070 on the basis of Arizona’s sovereign nature: “Today’s opinion,” he wrote, “approving virtually all of the Ninth Circuit’s injunction against enforcement of the four challenged provisions of Arizona’s law, deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there. Neither the Constitution itself nor even any law passed by Congress supports this result.”

Thomas also would have upheld the entire law, though it looks like he would have done this for a different reason than Scalia. Alito, also writing separately, concurred in part and dissented in part. He agrees with the majority that 2(B) is not preempted; agrees with the majority that § 3 is preempted; but on §§ 5(C) and 6 he would not have found these provisions preempted.

I will provide a more detailed analysis later.