(This article was published Monday, June 25 by the Heritage Foundation. The author John Malcolm is a former member of the Georgia Public Policy Foundation Board of Governors and currently a Senior Legal Fellow at the Heritage Foundation Center for Legal and Judicial Studies.)
By John C. Malcolm
Today’s Supreme Court decision upholding the major provision of Arizona’s S.B. 1070 immigration law is a strong rebuke of the Obama Administration.
The Administration had argued that its own immigration enforcement priorities should be treated as controlling law—that is, above the determinations of both Congress and Arizona. But the Court’s decision means that the President must go through Congress if he wishes to impede the states’ ability to enforce immigration laws within their borders.
In a judgment joined by all eight justices who participated (Justice Elena Kagan was recused), the Court found that Arizona may implement its requirement that law enforcement officers make a “reasonable attempt…to determine the immigration status” of any person they stop, detain, or arrest, if “reasonable suspicion exists that the person is an alien unlawfully present in the United States.” The Court found that three other provisions, which regulated alien registration, illegal aliens seeking employment, and arrest of individuals based upon possible removability, were preempted by federal law.
In this case, the Court recognized that the core of S.B. 1070, which requires officers to work collaboratively with the federal government to determine the immigration status of those who have been stopped or detained for a lawful purpose, need not be interpreted to conflict with federal law. With this decision, the Court has reaffirmed the important principle that, much as he might want to, President Obama cannot prevent the states from taking action to enforce federal immigration laws just by saying that he doesn’t want them to do so.
In 1996, as part of the Illegal Immigration Reform and Immigrant Responsibility Act, Congress made it clear that states retain inherent authority to cooperate in immigration enforcement and to supplement federal resources with their own. Federal officials are required by law to respond whenever state or local officers request verification of an alien’s immigration status (Homeland Security operates a 24/7 hotline for exactly that purpose). As Justice Anthony Kennedy said for the majority, “Federalism, central to the constitutional design, adopts the principle that both the National and State Governments have elements of sovereignty the other is bound to respect.”
The federal government has the exclusive authority to determine who should be admitted into the country and who should be deported from the country—a principle that the Court emphasized in preempting certain aspects of S.B. 1070. However, nothing in Arizona’s immigration check provisions modifies the conditions under which somebody can legally enter or stay in the country.
Some have argued that Section 2(B) of S.B. 1070, which the Court held was not preempted, will result in racial profiling. However, as U.S. Solicitor General Donald Verrilli conceded during oral argument, this case did not involve any allegation of racial profiling.
In fact, S.B. 1070 explicitly prohibits racial profiling. Specifically, Section 2(B) prohibits random stops to question someone about their immigration status but permits law enforcement officers to make such an inquiry when he or she makes a “lawful stop, detention, or arrest…in the enforcement of any other law or ordinance of a county, city or town of this state.” In other words, the stop must be lawful and predicated on a suspected violation of some non-immigration law.
If an officer legitimately stops, detains, or arrests somebody who is suspected of committing another offense and, while doing so, develops a reasonable suspicion (which must be based on articulable, objective facts, not a mere hunch) that the subject is an illegal alien, then the officer must make “a reasonable attempt” to verify or dispel that suspicion—specifically, by checking with the federal government. In short, all Arizona’s law requires is that law enforcement officers not turn a blind eye to possible violations of federal immigration laws while investigating other offenses during the course of their duties.
Arizona and other border states bear the largest burden when immigration laws are not enforced federally or when rules are overlooked. And the burden is significant. There are 2,000 miles along the southwest border, 370 of which adjoin Arizona. Illegal entries and border smuggling by “coyotes” are rampant, with an accompanying influx of drugs, dangerous criminals, and vulnerable people (who often end up as victims of human trafficking). Between 2006 and 2010, in the border town of Nogales alone, 51 drug smuggling tunnels were discovered. Home invasions and kidnappings are common in Arizona.
Illegal aliens take jobs from Americans and drive down wages. It is estimated that illegal aliens constitute 7.4 percent of the state’s workforce. To address these problems, Arizona passed S.B. 1070, the Support Our Law Enforcement and Safe Neighborhoods Act. Today’s decision reaffirmed that the states are not without recourse to address such a systemic problem. States should not have to beg the federal government for permission to enforce laws within their borders.
Today’s decision means that the Obama Administration may not, by executive order, prevent states like Arizona from participating in an immigration verification process set up by Congress. The President may disagree, but for his disagreement to actually have the force of law, he will have to persuade members of Congress—a refreshing change for a President who has seen fit to go it alone far too frequently. While some people in other countries will be unhappy with today’s decision, as Judge Carlos Bea stated in his dissent from the Ninth Circuit’s opinion (which has now been overturned), “We do not grant other nations’ foreign ministries a heckler’s veto.”