The U.S. Supreme Court on Monday rejected key provisions in Arizona's tough anti-immigration law, but let stand controversial police checks of immigration status.
In Arizona v. U.S., a divided Court, led by Justice Anthony Kennedy, held that three of four provisions in the law challenged by the Obama Administration were preempted—or blocked—by federal immigration law. Justice Elena Kagan did not participate in the case.
Kennedy said the following three provisions were preempted because they either conflicted with federal law or because Congress has "occupied the field" with federal regulation and "even complementary state regulation" is impermissible:
Section 3 of what has become known as S.B. 1070 created a new state misdemeanor: willful failure to complete or carry an alien registration document.
Section 5(C) also created a misdemeanor penalty for an illegal alien to apply for, solicit or perform work as an employee or independent contractor.
Section 6 authorized a state officer to make a warrantless arrest if the officer has probable cause to believe the person had committed a removable offense.
The majority held that Section 2(B) was not preempted—at least not until there has been experience with its application. Under that section, state officers are to make a "reasonable attempt" to determine the immigration status of any person they stop, detain or arrest on some other legitimate basis if reasonable suspicion exists that the person is unlawfully in the country. Anyone who is arrested also must have his or her immigration status determined before being released.
"There is a basic uncertainty about what the law means and how it will be enforced," wrote Kennedy. "At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume Section 2(B) will be construed in a way that creates a conflict with federal law."
After Kennedy summarized the decision from the bench this morning, Justice Antonin Scalia delivered a lengthy summary of his dissent in which he used as evidence of the majority's error the Obama Administration's recent decision to allow the children of illegal aliens to remain temporarily in this country.
"The President said at a news conference that the new program is `the right thing to do' in light of Congress' failure to pass the Administration's proposed revision of the Immigration act," wrote Scalia. "Perhaps it is, though Arizona may not think so. But, to 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."