Supreme Court Rules on Arizona Immigration Law

June 25, 2012

Photo by W. L. Doromal ©2012
"Immigration policy shapes the destiny of the Nation. On May 24, 2012, at one of this Nation’s most distin­guished museums of history, a dozen immigrants stood before the tattered flag that inspired Francis Scott Key to write the National Anthem. There they took the oath to become American citizens. The Smithsonian, News Release, Smithsonian Citizenship Ceremony Welcomes a Dozen New Americans (May 24, 2012), online at These naturalization ceremonies bring together men and women of different ori­ gins who now share a common destiny. They swear a common oath to renounce fidelity to foreign princes, to defend the Constitution, and to bear arms on behalf of the country when required by law. 8 CFR §337.1(a) (2012).

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." From the Supreme Court.

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 under­ standable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law." From the Supreme Court Decision, Justice Kennedy

In what is considered a win for President Obama, three of four controversial provisions in Arizona's immigration law, SB 1070, which passed in 2010, were struck down by the Supreme Court.  Provisions that were ruled unconstitutional were:
  • Section 5(C) –making it a crime for an illegal immigrant to work or seek employment in Arizona;
  • Section 3 –making it a crime for immigrants to fail to carry registration documents; and
  • Section 5(C) –authorizing the local and state police to arrest people without a warrant if the officers have probable cause to believe that the person is an illegal immigrant.
The court upheld Section 2(B), the provision that police could check the immigration status of people stopped or detained if there was a reasonable suspicion that they are in the U.S. illegally. However, the opinion suggested that after the law went into effect it could face further legal challenges. From the ruling:
It is not clear at this stage and on this record that §2(B), in practice, will require state officers to delay the release of detainees for no reason other than to verify their immigration status. This would raise constitutional concerns. And it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision. But §2(B) could be read to avoid these concerns. If the law only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision would likely survive preemption—at least absent some showing that it has other consequences that are adverse to federal law and its objectives. Without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2(B) will be construed in a way that conflicts with federal law. Cf. Fox v. Washington, 236 U. S. 273, 277. This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect. Pp. 22–24.
Justice Elena Kagan recused herself from the case. The majority opinion was written by Justice Anthony Kennedy and joined by Chief Justice John Roberts, Justice Stephen Breyer, Justice Ruth Ginsburg and Justice Sonia Sotomayor. Justices Anthony Scalia, Samuel Alito and Clarence Thomas concurred in part and dissented in part.

On June 13, 2012,  I accompanied a group of Orlando students who had the privilege of meeting with Supreme Court Justice Clarence Thomas in the inner chambers of the Supreme Court Building. (This was the 19th time that he has met with students and their chaperones.) During the two hour meeting he remarked on the Arizona and health-care laws that the Supreme Court was weighing. He said that as a justice he does not look at the political aspects of an issue, but only at the law.

In the ruling, Justice Kennedy stated, "... the state may not pursue policies that undermine federal law."  Other states have also enacted immigration laws which contained provisions similar to Arizona's immigration law. These include Alabama, South Carolina, Utah, Indiana and Georgia. The CNMI has also proposed a law that contains provisions that mirror those that were struck down by the Supreme Court.  (See the December 2011 post, CNMI Department of Labor Supports Preempting Federal Law to read the law and for commentary.) We should expect that provisions in these states' laws will now also be considered unconstitutional.

Read the opinion:

See also these related posts:

Ninth Court of Appeals Upholds Blocking Arizona Law
President Obama Pushes Immigration Reform as Arizona Governor Signs Misguided Bill Into Law
Immigration Reform
President Obama Sues Arizona
Fallout From Arizona "Immigration" Law
Hate Group Pens Congressional Brief in Support of Arizona Law
Immigration Reform Debate
A Victory for Human Rights and the Obama Administration: Ruling on Arizona Immigration Law Issued
Two Days
CNMI AG Joins Michigan and 8 Other AGs to Back the Arizona Immigration Law
Arizona Files Appeal in Face of Nationwide Protests
Alien Registration

Disclaimer: This is not a legal blog. No opinion or statement should be perceived as legal advice. All posts are the opinion of the author or contributors who are expressing their First Amendment Rights.