While rejecting much of Arizona’s tough new immigration law, the Supreme Court has upheld a key provision allowing police to check the immigration status of people who have been detained. The court ruled on Monday that what Arizona has called a policy of “attrition through enforcement” does not appear to violate the Constitution by infringing on the federal government’s power to control immigration.
Rejected were provisions making it a state crime for immigrants not to register with the federal government and to seek or hold jobs without proper documents, as well as a measure that allowed the arrests of some people suspected of being deportable without a warrant.
The US government has said that Arizona’s tough new law, which five other states (Alabama, Georgia, Indiana, South Carolina and Utah) have created legislation similar to, intrudes on federal oversight of immigration policy. President Obama has said that the law is a threat to ‘‘basic notions of fairness.’’ The White House had encouraged the Supreme Court to strike down the whole law.
Monday’s decision, written by Justice Anthony M. Kennedy, was 5 to 3; Justice Elena Kagan was recused because of her previous role as solicitor general. Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas dissented. The court was unanimous on the decision about the status checks.
Said Stephen W. Yale-Loehr, who teaches immigration law at Cornell University and is co-author of a treatise on the topic, in the New York Times:
“The court correctly held that federal immigration law trumps most of Arizona’s controversial immigration law,. But by upholding Arizona’s ‘check your papers’ provision, at least for now, the court has given other states a green light to try to enact similar immigration laws.”
“Some will be anti-immigrant, like Arizona’s. But other new state laws may be pro-immigrant, as states realize the importance of immigrants in their communities. The decision increases pressure on Congress to enact comprehensive immigration law to prevent a crazy patchwork of conflicting immigration laws around the country.”
The Supreme Court’s decision opens the field for other states to create similar legislation.
It also as advances a “political narrative” that could win President Barack Obama Latino votes, as Politico notes. Politico also underscores that Monday’s ruling was “far from a definitive verdict on the Arizona law known as S.B. 1070, since the case that the court decided did not address the most contentious charge about the legislation,” that it will lead to racial profiling of Latinos. The Supreme Court’s decision is, it is thought, likely to lead to “additional waves of litigation” due to profiling and concerns that US citizens or legal immigrants could be stopped and detained while police check their status.
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