Supreme Court upholds Arizona’s law on police stop and verify immigration status

by Atty. Emmanuel Samonte Tipon

Even President Obama’s Latina Supreme Court Justice appointee Sonia Sotomayor and Clinton appointee Justice Ruth Ginsburg voted with the Supreme Court majority to uphold Arizona’s law requiring officers who stop, detain, or arrest a person to verify the person’s immigration status. The Obama administration had sued Arizona to stop it from enforcing its law, S.B. 1070, §2(B) contending that the federal government has the exclusive power to enact laws affecting immigration (preemption doctrine), although many believe that the reason was politics – pandering to Latino voters.

Can you imagine the federal government preventing a state from enacting and enforcing a law that helps the federal government enforce immigration laws?  Only in America and under an Obama “imperial presidency.” Justice Antonin Scalia denounced the Obama administration, saying that what we have is “A Federal Government that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude.” He asked “Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?” Scalia said that “As a sovereign, Arizona has the inherent power to exclude persons from its territory, subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress.” He pointed out that “Arizona has moved to protect its sovereignty—not in contradiction of federal law, but in complete compliance with it.”  Justice Scalia took a dig at Obama’s “amnesty” saying:  “Thousands of Arizona’s estimated 400,000 illegal immigrants—including not just children but men and women under 30—are now assured immunity from enforcement, and will be able to compete openly with Arizona citizens for employment.”

The Supreme Court said that it was improper for the lower federal courts to enjoin the enforcement of §2(B) without some showing that its enforcement in fact conflicts with federal immigration law and its objectives.  The status checks do not interfere with the federal immigration scheme, but on the other hand consultation between federal and state officials is an important feature of the immigration system. In fact, Congress has encouraged the sharing of information about possible immigration violations. The federal scheme thus leaves room for a policy requiring state officials to contact ICE as a routine matter. 

OTHER PROVISIONS STRUCK DOWN

However, the Supreme Court struck down as having been preempted by federal law the provisions of the Arizona statute which –

--makes failure to comply with federal alien-registration requirements a state misdemeanor.  §3.

--makes it a misdemeanor for an unauthorized alien to seek or engage in work. §5(C).

--authorizes state and local officers to arrest without a warrant a person that the officer has probable cause to believe has committed any public offense that makes the person removable from the United States. Arizona v. United States, No. 11-182, 06/25/12. 

COMMENTS ON DECISION

President Obama said that he was “pleased” with the decision striking down the three provisions. He did not comment on the provision that was upheld. He urged Congress to act on comprehensive immigration reform because a patchwork of state laws was not the solution.

Republican Presidential candidate Mitt Romney said that he believes “each state has the duty – and the right – to secure our borders and preserve the rule of law, particularly when the federal government has failed to meet its responsibilities.” He charged that Obama had “failed to lead” on the immigration issue as a result of which the states had tried to fill the vacuum.

Arizona Governor Jan Brewer hailed the decision as "a victory for the rule of law.”

OBSERVATION:  

Why can’t the police simply give a copy of the arrest record of every arrestee with a foreign birthplace to the Department of Homeland Security (DHS) and let DHS do the immigration status verification? In that way the arrestee does not have to be detained by the arresting officer while waiting for the verification. It appears that this is being done already in some states.  

(Atty. Tipon has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He specializes in immigration law and criminal defense. Office: 800 Bethel St., Suite 402, Honolulu, HI 96813. Tel. (808) 225-2645. E-Mail: filamlaw@yahoo.com. Website: www.ImmigrationServicesUSA.com. He is from Laoag City and Magsingal, Ilocos Sur. He served as an Immigration Officer. He is co-author of “Immigration Law Service, 1st ed.,” an 8-volume practice guide for immigration officers and lawyers. Listen to the most funny, interesting, and useful radio program in Hawaii on KNDI at 1270, AM dial every Thursday at 7:30 a.m., rebroadcast at www.iluko.com. This article is a general overview of the subject matter discussed and is not intended as legal advice. No warranty is made by the writer or publisher as to its completeness or correctness at the time of publication.)