While my colleague Joel Pollak suggests this morning that the Supreme Court “struck down the form – but not the substance” of Arizona’s immigration law, the truth seems to be the opposite: the Supreme Court defanged the Arizona law to the point where it has no meaning. The case is an outright victory for the Obama administration – it allows them to complain about racial profiling without the state of Arizona having the power to actually fight illegal immigration. Beyond which, the ruling is dead wrong.
First things first: the ruling today completely removes Arizona’s ability to deal with illegal immigration. There were four provisions of the Arizona law at issue:
- Section 2(B): When Arizona law enforcement reasonably suspect that somebody they have lawfully detained is in the country illegally, they must check immigration status.
- Section 6: Arizona law enforcement can make warrantless arrests if they have probable cause to believe that the suspect is in the country illegally. The person is then turned over to federal immigration authorities to deal with.
- Section 3: It’s a crime under Arizona law for illegal immigrants to fail to carry alien registration documentation.
- Section 5(C): Unlawfully present aliens can’t knowingly apply for, solicit, or do work in Arizona.
The Supreme Court struck down all but the first of these provisions. Logically, that means that even if Arizona law enforcement pulls somebody over for a traffic stop and checks immigration status, they can’t actually arrest them for immigration status under Section 6, and they can’t even cite them for a crime under Section 3. So, what are the cops supposed to do – check immigration status, then write a ticket and let these illegal immigrants go about their business?
As for provision 5(C), federal law already puts a burden on employers to check immigration status before hiring, but the state made it a crime for illegal immigrants to solicit work. That provision is gone, too.
This leads to the second point: this is a big win for Obama. The heart of the law is not intact. Only the most controversial provision, which mandates illegal immigration checks by law enforcement – and which will not result in arrests in any case – remains, providing political fodder for the Obama campaign. They’re already capitalizing on it, calling the Supreme Court and the State of Arizona racist.
Finally, the ruling itself is legally incorrect. It essentially states that if the federal government passes a law, then refuses to enforce it, states must sit on their hands and allow the federal government to continue its malfeasance. This is a particularly egregious ruling in light of the fact that the Obama administration has already demonstrated its willingness to avoid enforcement of the law when it comes to illegal immigration. Meanwhile, Arizona is expected to pick up the cost of illegal immigrations, since the feds won’t.
The decision is a disaster on all sides. Justice Scalia got it exactly right: “[T]o say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.” Conservatives declaring it a victory – or even a partial victory – are missing the larger point here. Obama won. Arizona lost. So did the American people.