Interpreting Supreme Insight


June 25, 2012 | 5:11 PM

Interpreting Supreme Insight

Interpreting Supreme Insight

Well, this could be one whale of a week based on what came out from the highest court in the land today. In a 5-3 decision the Arizona Immigration bill SB 1070 was ruled constitutional on one part, while striking 3 key provisions.

What stayed in the law could be considered the most controversial. That portion of the law requires an officer to make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there’s reasonable suspicion that person is in the country illegally. That portion has drawn howls from special interest groups who claim it invites racial profiling.

Three of the laws other components were struck down. That included making it a state crime for an immigrant not to be carrying papers, allow for warrant-less arrest in some situations and forbid an illegal immigrant from working in Arizona.

At the center of the decision was whether Arizona’s law supported or supplanted federal laws on immigration by requiring law enforcement to demand immigration papers of those detained and what an officer would interpret as being in the US without authorization. The issue of reasonable suspicion versus probable cause and how a peace officer makes that decision sparked this debate when the bill was passed. Here is my question – how is law enforcement going to properly interpret the part of the law allowed to go forward without asking for some form of paperwork?

It was obvious the justices were split on several aspects of what SB 1070 proposed. Justice Kennedy wrote the majority opinion. He said it was improper for the lower courts to enjoin Section 2, which requires law enforcement to check immigration status, “without some showing that (the section’s) enforcement in fact conflicts with federal immigration law and its objectives.” Kennedy continued – “The mandatory nature of the status checks does not interfere with the federal immigration scheme,” he wrote. “The federal scheme thus leaves room for a policy requiring state officials to contact ICE as a routine matter.”

He also added some personal comments on the current status of federal enforcement: “The history of the United States is in part made of the stories, talents and lasting contributions of those who crossed oceans and deserts to come here,” Kennedy wrote. “The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law.”

Justices Scalia, Thomas, and Alito felt the law should move forward as written, although not all in the same manner of opinion. Justice Scalia made some fiery comments before a full court regarding the issues – Scalia said that Arizona’s own sovereignty as a state makes it “entitled to impose additional penalties and consequences for violations of the federal immigration laws, because it is entitled to have its own immigration laws.” In addition, Scalia cited the Obama Administration its recent decision to stop deporting certain undocumented immigrants under 30 years old as a policy change that defies the administration’s argument that S.B. 1070 eats up the federal government’s scarce enforcement resources. However Scalia was not done with his branding on the issue and followed up his oration with a rather blunt opinion as well.  “What I do fear — and what Arizona and the States that support it fear — is that ‘federal policies’ of nonenforcement will leave the States helpless before those evil effects of illegal immigration,” Scalia wrote. “Arizona bears the brunt of the country’s illegal immigration problem. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so.”

You have to like this man…..

So this is now kicked back down to the lower courts for more fun.

Something tells me this will be back before the Supremes again in near future.

Thursdays ruling on BO Care should be a thriller!