“Show me your papers” is the most familiar provision of Arizona’s tough immigration law, but it is not the most consequential. As such, the Supreme Court’s decision Monday to allow that provision of the state law to stand is still a victory for the Obama administration.
Conservative critics of the federal government’s complaint against Arizona had hoped for a wholesale endorsement of the state law. Instead, Arizona got permission to do what local police officers all over the country already do on an ad hoc basis—check with federal officials about a questionable person’s legal status inside the United States.
The Supreme Court agreed with the federal government’s argument that the three other questionable parts of Arizona’s law—warrantless arrests, ID requirements, and criminalizing work of undocumented workers—improperly stomped on the federal government’s role of enforcing immigration law.
“Federal governance of immigration and alien status is extensive and complex,” the high court held in an opinion written by the moderate Justice Anthony Kennedy. He was joined by four other justices—Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. In other words, it wasn’t even close with five justices on board and Justices Antonin Scalia and Clarence Thomas only dissenting in part. Justice Elena Kagan did not participate in the deliberations because of her previous work on the issue with the Obama administration.
Presumptive GOP presidential nominee Mitt Romney tried to use the ruling as a promise to "work in a bipartisan fashion to pursue a national immigration strategy" -- something that has proven virtually impossible in a highly polarized Congress.
“President Obama has failed to provide any leadership on immigration," said Romney, who has had to address the issue in lieu of hammering home his signature message on the economy. "This represents yet another broken promise by this president. I believe that each state has the duty -- and the right -- to secure our borders and preserve the rule of law, particularly when the federal government has failed to meet its responsibilities. As Candidate Obama, he promised to present an immigration plan during his first year in office. But four years later, we are still waiting.”
The part of the Arizona law that will stand gives police officers the ability to check the legal status of the people they stop for other violations of the law. The idea is to create a seamless cooperative enforcement system between local and federal law enforcement. At oral argument, the justices showed little patience for the government’s argument that the new requirement for local police impeded federal authorities’ ability to enforce immigration laws. “The Constitution recognizes that there is such a thing as state borders and a state can police their borders,” said Justice Antonin Scalia at the oral argument.
Civil rights advocates say the “show me your papers” provision goes well beyond federal law and encourages racial profiling. It is impossible for a beat cop to tell who is here legally and who isn’t. Police officers, on the other hand, say the provision is a common-sense endorsement of what they are doing already. The federal government itself has put in place several cooperation agreements with local police jurisdictions under its Secure Communities program, in which the local police and the federal authorities share information about the immigration status of the people that are detained for other reasons.
The “show me your papers” provision can now be implemented after today’s decision. Arizona was operating under an injunction that prohibited the four parts of the law under question from going into effect.
The rest of the Arizona law cannot be implemented, including a provision that would have allowed police officers to arrest a suspect without a warrant if they have probable cause to believe the person “committed any public offense that makes that person removable from the United States.” Arizona argued that the provision was basic common sense. With the ability to check immigration status and apprehend people who are in the country illegally, local officers could take illegal immigrants into their detention facilities on routine pullovers without having to wait for federal agents to show up. Police officers say sometimes they wait for hours for immigration officers because they can’t detain them on their own. The justices said that provision imposes on federal law and noted that in general, it is not a crime to be in the country without documents.
The Arizona law also had a provision that made no sense, requiring noncitizens to carry documentation of their legal status and makes it a crime for undocumented immigrants to not have such ID. The concept was confusing on its face, which is more or less what the justices said during oral argument. It is impossible for an illegal immigrant to have documentation showing they are in the country legally. Civil rights groups said Arizona’s law would have improperly layered a new state crime on top of the federal violation of being in the country without papers. Arizona argued unsuccessfully that it is well within its rights to create laws prohibiting something that already is barred under federal law.
The final provision of Arizona’s law—making it a crime for undocumented foreigners to seek work or perform work—stood the least chance of surviving the justices’ scrutiny. Under federal law, employers are barred from hiring illegal immigrants; the employees are not subjected to penalties for working for them. The distinction was the subject of intense debate in 1986 when Congress created the employer sanctions as part of a comprehensive immigration scheme, and lawmakers eventually decided to make the employers liable for hiring illegal workers. The government argued that Arizona went well beyond the federal framework in assigning culpability to the employees rather than the employers. That argument went virtually unchallenged during the oral argument.
Rebecca Kaplan contributed