Court Splits on Arizona Law

By JESS BRAVIN and TAMARA AUDI, WSJ

The Supreme Court struck down the harshest parts of an Arizona law targeting illegal immigrants, ruling the state interfered with congressional authority over U.S. borders, but it let stand a requirement that police check the immigration status of people they stop for traffic or other offenses.

By a vote of 6-2, the court voided a provision making it a state crime for an immigrant to fail to carry federal registration papers. By 5-3 votes, it invalidated sections that authorized jail time for illegal immigrants who seek work in Arizona and that gave state and local police more power to arrest immigrants suspected of offenses.

Arizona’s one victory came in the court’s decision to uphold the status-check provision. Federal law already requires immigration authorities to respond to checks from state and local officers, indicating that Congress saw nothing wrong with such “consultation” between arms of government, the court said.

The ruling on the state law, known as SB 1070, was greeted with cautious favor from people on both sides of immigration debate. Opponents of the law were generally relieved and said the ruling lifted some of the fears illegal immigrants felt about being picked up by state police during everyday activities. But they said much would depend on how the surviving provision is interpreted.

“There’s still going to be a lot of uncertainty until it’s clear how police will approach this,” said Joe Rubio, lead organizer for the Arizona Interfaith Network/Valley Interfaith Project, which opposed the law.

Maricopa County, Ariz., Sheriff Joe Arpaio, known for his tough stance on illegal immigrants, said the most important part of the law was upheld. “It shows cops can ask someone if they’re here illegally when you stop them for another crime,” he said in an interview.

Although the status-check provision contains no criminal sanctions or authority for the state to hold illegal immigrants without federal permission, it emerged as the flash point of controversy over effectively enlisting every Arizona law officer in a state campaign to “discourage and deter” the presence of illegal immigrants, as the statute says.

The court left open the possibility that the surviving provision could be challenged, should it lead to prolonged detentions solely to determine immigration status.

“The government of the United States has broad, undoubted power over the subject of immigration and the status of aliens,” Justice Anthony Kennedy wrote for a majority including Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. “Immigration policy can affect trade, investment, tourism and diplomatic relations for the entire nation.”

Justice Samuel Alito agreed with the majority that Arizona’s alien-registration requirement was void, but voted to uphold SB 1070 provisions making it a crime for illegal immigrants to seek work and authorizing warrantless arrests of certain aliens. Justices Antonin Scalia and Clarence Thomas each filed separate dissents arguing that SB 1070 should be upheld in its entirety.

The majority “deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there,” Justice Scalia wrote.

Justice Elena Kagan, who served as solicitor general during earlier stages of the litigation, recused herself from the case.

Justice Kennedy acknowledged that “the problems posed to the State by illegal immigration must not be underestimated,” and cited figures indicating that “unauthorized aliens” are “responsible for a disproportionate share of serious crime”—a reported 21.8% of felonies in Maricopa County, which includes Phoenix, where they constitute 8.9% of the population.

Nonetheless, he wrote that since 1940, “the federal government has occupied the field of alien registration,” leaving no room for Arizona to pile on penalties. SB 1070 went further than federal law, forbidding probation and even the possibility of a pardon for such an offense, he said.

Another SB 1070 section made it a crime for an illegal immigrant to seek work, in contrast to federal law, which punishes employers for hiring unauthorized immigrants but not the workers themselves, unless they used fraudulent documents or committed perjury to obtain work. The state law “would interfere with the careful balance struck by Congress” over the labor market, Justice Kennedy wrote.

Justice Kennedy concluded with a paean to America’s history as a nation of immigrants, observing that last month “a dozen immigrants stood before the tattered flag that inspired Francis Scott Key to write the National Anthem” and took the oath of citizenship.

Opponents of the law said they would redouble efforts to challenge the remaining part of the law. “This proves Arizona cannot criminalize immigrants,” said Mary Rose Wilcox, a Maricopa County supervisor, at a rally at the state Capitol Monday morning. “The wind is at our backs.” She said the final part of the law would be challenged and fall: “Three down, one to go.”

Gov. Jan Brewer, a Republican who signed the law in 2010, called the ruling a victory and said she had once again ordered law-enforcement officials to undergo training on how to enforce the law without engaging in racial profiling.

As a result of Monday’s ruling, state officials can’t jail an illegal immigrant under state law solely for failing to carry papers. In the absence of another crime, the most they can do is refer the case to federal authorities for possible deportation proceedings.

Federal policy will continue to put priority on deporting those who commit crimes, have repeatedly violated immigration laws or have crossed the border recently, Homeland Security Secretary Janet Napolitano said Monday. That means otherwise law-abiding immigrants aren’t likely to face deportation, even if Arizona police, using the surviving part of the law, discover the immigrants lack documents allowing them to be in the U.S.

“We will not be issuing detainers on people unless they meet our priorities,” said one Obama administration official.

Arizona’s illegal-immigration measure, officially titled the Support Our Law Enforcement and Safe Neighborhoods Act, reflected outrage among tea-party conservatives over what they considered lax enforcement by federal immigration authorities. Yet Arizona voters sent a mixed message on the measure when its author, state Senate President Russell Pearce, lost his seat in a November recall election to another Republican.

Similar measures have been introduced in other states, including Alabama, which recently drew unwelcome attention when executives from German and Japanese car makers that the state had lured there were arrested for failing to produce immigration papers.

Reaction was mixed in Georgia, Alabama and South Carolina, three states that passed legislation in 2011 aimed at restricting illegal immigration. Those laws had a provision similar to the one in Arizona that was upheld. Alabama House Speaker Mike Hubbard, a Republican, called the ruling a victory, while opponents in the three states said the Supreme court had upheld their view that immigration was essentially a federal matter.

Each state law has other provisions, including some that weren’t in the Arizona statute, and it wasn’t clear how federal courts would apply the Supreme Court’s reasoning in those cases. Georgia made it a state crime for people to knowingly house or transport an illegal immigrant, a provision that was blocked by a lower court and is now under appeal.

—Andrew Morse and Cameron McWhirter contributed to this article on WSJ.