Immigration Law Practice
Arizona, you went too far.
The Supreme Court struck down key parts of an Arizona law that sought to deter illegal immigration, but let stand a controversial provision allowing police to check a person’s immigration status while enforcing other laws. In a decision sure to ripple across the political landscape in a presidential election year, the court’s 5-3 ruling upheld the authority of the federal government to set immigration policy and laws.
This is huge news.
The general message the Supremes sent the states: No, you cannot create your own immigration laws. Immigration is an area of law that only the federal government can regulate. So, hands off. The only part of the law to survive, was a section that allowed police officers to inquire as to a person’s immigration status if – big IF – the police officer has “reasonable suspicion” to think the person is here illegally. Justice Kennedy, writing for the majority, explains: “There is a basic uncertainty about what the law means and how it will be enforced,” Kennedy wrote, making clear that Arizona authorities must comply with federal law in conducting the immigration status checks or face further constitutional challenges.
I don’t think this will particularly harm hispanics in the United States. When the court mentions “uncertainty,” what it is really saying is “we will answer the question of ‘racial profiling’ another day.” If it turns out that there is racial profiling, then the Supremes may revisit the issue and eliminate that section of the law as well (of course, that means many more lawsuits, appeals, and brief-writing). Meanwhile, the federal government is watching the states to make sure this doesn’t happen. And even if it does happen, all the state agency can do is detain the suspected illegal immigrant until ICE makes a decision as to whether or not to deport, which is what they states have been doing since well-before the anti-immigration laws went into effect. Obama’s administration has already declared that it will not deport illegal immigrant children.
On Monday, two administration officials stated that the Department of Homeland Security expects an increase in requests from Arizona police to check the immigration status of suspects. However, the officials said the DHS will get involved only in high-priority cases such as felony offenders, repeat immigration violators or newly arrived illegal immigrants.