Tuesday, June 26, 2012

Yesterday's Immigration Ruling

Yesterday the Supreme Court determined that portions of Arizona’s immigration law were unconstitutional under our federalism scheme. In particular, there were four provisions of the Arizona law that were challenged, three of which were overturned. All eight justices (Kagan did not participate) agreed that the provision requiring police officers to determine the immigration status of those they reasonably believed are here illegally was permissible. This was the most contentious portion of the law.

The other three portions—the creation of a new state crimes for filing to complete immigration documentation, the creation of a new state crime for applying for a job without documentation, and the ability for police officers to arrest anyone they believed were deportable—were overturned by either a 5-3 or 6-2 vote. The theory for all three was that it is the federal government’s prerogative to define immigration laws, and states have not retained any authority to govern that area. Only Scalia and Thomas would have upheld the entire law. SCOTUS Blog has a good “plain English” explanation of the ruling.

The best line comes from Justice Kennedy’s majority opinion: “Removal is a civil, not criminal, matter.” This principle has been blurred in recent years as new methods of enforcement have been tried, often incorporating local law enforcement. But it must be remembered that the failure to have proper documentation does not equate to criminal activity any more than driving without a driver’s license equates to reckless driving* or homeschooling without submitting the proper paperwork equates to educational neglect. And because the Federal Government treats it as a civil issue, it is problematic when the states try to convert it into a criminal issue. Justice Kennedy’s clarification on this point provides a much needed starting point for analyzing the immigration policy problems we face today.

* Update: a reader has since pointed out that driving without a license--at least in some states--is a criminal offence. Furthermore, some aspects of illegal immigration, such as reentry after deportation and assisting another to enter illegally, are federal crimes. So this is not an entirely clear distinction in the law. However, I think the underlying distinction still holds even if it is blurred in the law. There is a fundamental conceptual difference between a lack of documentation and criminal activity.
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