SB 1070 Argument Recap: “Papers, Please” Likely to Stick, Other Provisions Not So Clear

by Peter Spiro

Transcript of today’s argument before the Supreme Court here.  Not a lot of fireworks.  The key takeaway: the Court (including some on the left) didn’t seem to have much problem with section 2 of the Arizona law, which requires law enforcement to undertake immigrant status determinations in the course of stops or arrests where there is reasonable suspicion that a person is in the United States illegally.  (Here’s the SB 1070 text; here’s an excellent summary of the law and issues from Ben Winograd at the Immigration Policy Center.)

Important to several of the justices on this score: the fact that there would be no necessary consequence to the status determination as made by state law enforcement.  Where Arizona deemed someone to be in the country illegally, it could inform federal immigration authorities, but nothing would require the feds to follow up.

(“Papers, please” is not entirely accurate, insofar as an officer first requires some other reason to stop, detain, or arrest an individual – suspected undocumented status by itself isn’t enough to initiate the process.  But no better label has stuck.)

It’s not nearly as clear where the Court will come out on section 3, which in a roundabout way makes undocumented status a crime under state law (it’s not under federal).  If the Arizona wins on section 2 but loses on section 3, its victory will be largely symbolic.

Not a lot of talk about the foreign relations aspects of the case.  Scalia duly made the “heckler’s veto” argument with respect to dormant foreign affairs preemption: “So we have to — we have to enforce our laws in a manner that will please Mexico. Is that what you’re saying?”  Don Verrelli fumbled the answer, weakly adverting to the Founders (who had no views of any kind on federal control of immigraton, the power over which is not found in the Constitution itself).

Justice Scalia supplied the only erstaz entertainment, with a riff analogizing undocumented aliens to bank robbers.  The feds are going after only the professional bank robbers (read: criminal aliens), that doesn’t mean the state can’t go after the amateurs.  This is about as helpful as “broccoli“.  States have authority to go after bank robbers, professional and amateur; the whole question here is whether states have the authority to go after undocumented aliens.

Finally, Scalia also apparently believes in the enforcement of borders between states:

What does sovereignty mean if it does not include the ability to defend your borders?. . . Arizona is not trying to kick out anybody that the Federal government has not already said do not belong here. And the Constitution provides — even — even with respect to the Commerce Clause — “No State shall without the consent of Congress lay any imposts or duties on imports or exports except,” it says, “what may be absolutely necessary for executing its inspection laws.” The Constitution recognizes that there is such a thing as State borders and the States can police their borders . . .

Look forward to something pretty extreme from him and Thomas; I suspect the rest will split the difference.

http://opiniojuris.org/2012/04/25/sb-1070-argument-recap-papers-please-likely-to-stick-other-provisions-not-so-clear/

4 Responses

  1. Response…

    …. the Founders (who had no views of any kind on federal control of immigraton, the power over which is not found in the Constitution itself).

    I would quibble that Art. I, Sec. 9, cl. 1, “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight,” rather clearly implies, without resorting to emanations or penumbrae, that Congress may make laws regulating “Migration” (or immigration) into the United States.

    Also, Art. I, Sec.8, cl. 4, gives Congress the power to “To establish an uniform Rule of Naturalization.

    It’s not too much of a stretch to contemplate that would include uniform rules for the immigration necessary for the naturalization process. 

    Cheers!

  2. Response….

    Although, I suppose one could always argue that the Constitutional authority to make rules regulating immigration is retained by the People under the 10th Amendment.

    (Somehow I don’t see that one getting much traction.)

  3. Consul: The question was open enough that the Court felt it necessary to address the question in the Chinese Exclusion Case.  It founf the answer in a mash-up of constitutional clauses (many relating to the war power), but sovereignty as detached from the Constitution played a leading role as well.

  4. Prof. Spiro:  Thanks for the clarification; it edifies.

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