The Supreme Court has struck down most of Arizona's SB 1070 and set up the remainder - the "show me your papers" provision - for subsequent legal challenges. The decision provides no clear victory for SB 1070 supporters, although Gov. Jan Brewer misleadingly suggests otherwise in her reaction, but neither does the court offer opponents the clear strike-down they were seeking.
Citing the need for a coherent foreign-relations policy and uniformity of the law's application, a divided Supreme Court agreed with the Obama administration's position that parts of Arizona's law tried to usurp federal authority on some immigration policy. The provisions struck down sought to make it a state crime for someone in the country illegally to seek work or hold a job, or for an immigrant to fail to register with federal authorities.
The high court also threw out the portion allowing law enforcement officers to arrest people without warrants based on what they decide is probable cause to think the person is deportable under federal law.
We mention Brewer's response to the decision because it is so dissonant from what the Supreme Court opinion states. In remarks after the ruling was released, Brewer heralds the "legal victory" and states that the "the heart of SB 1070 can now be implemented."
While the Supreme Court did not throw out the entire law, the majority opinion, written by Justice Anthony Kennedy, is not a legal victory for SB 1070 proponents. The court ruled as unconstitutional three major provisions of the law - and stated that it is too soon to decide if the remaining piece, the portion Brewer calls the law's "heart," is being carried out in a way that violates the Constitution.
The court, in fact, did not shut the door on legal challenges to the "show me your papers" section. And it's this portion that offers hope to opponents of SB 1070. Other lawsuits challenge that provision, and it's important to remember that the Obama administration's argument was confined to the state trying to pre-empt federal law - it didn't touch racial profiling or any other civil-rights issue, so those concerns remain unaddressed.
In practice, Arizona law enforcement agencies already, in accordance with federal law, conduct immigration checks on people under arrest on suspicion of another infraction. The concern is that authorities will use this section of SB 1070 to detain people while those checks are being conducted - which is a problem if that detention exceeds the length of time they're held on the underlying investigation. Again, the court ruled that because that portion hasn't gone into effect yet, it is too soon to bring a challenge.
We have no doubt that, in time, the "papers" section will also be tested before the Supreme Court. And it, too, should be struck down.
In the meantime, the Department of Homeland Security announced Monday that it is canceling the "task force" arrangements with police agencies across Arizona, including the Pima County Sheriff's Department, that have allowed officers to make arrests to enforce federal immigration law.
Also, DHS officials announced that agents won't take custody of people in the country illegally, even if notified by law enforcement, unless the person falls into specific priority categories of being a convicted criminal, a person who has been previously deported or a person who is a recent border crosser.
It is appropriate for federal authorities to be explicit about how they will use their limited resources, and these priorities are reasonable. The federal court system, which handles immigration cases, is overburdened as it is, and adding a raft of new low-level cases is not a good use of public money.
These movements speak to the more fundamental problem, however, and that is that our country's immigration system has serious flaws and must be remedied. Arizona has experienced the fallout from this failure in greater measure than most states, it is true, but it is right that the Supreme Court emphasized that immigration is a federal, not state, matter.
So it's time - past time - for our congressional representatives to lead the way toward building a new and practical national immigration policy.
Arizona's attempt at legislating its own immigration policy has, fortunately, largely failed, but the battles won't end until a sensible and rational national plan that works for families, communities and business is in place.
Arizona Daily Star
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.
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.
Majority opinion in ARIZONA ET AL. v. UNITED STATES, written by Supreme Court Justice Anthony M. Kennedy, issued June 25, 2012