Supreme Court split verdict puts immigration center stage in 2012

by Sam Baker and Jonathan Easley, thehill.com
June 25th 2012 5:58 PM

The Supreme Court scrapped much of Arizona's immigration law Monday, intensifying the national debate on the issue and making it more likely to be a big factor in November's presidential election.

With both parties vying for a larger piece of the Hispanic vote, President Obama quickly praised the ruling while his GOP rival Mitt Romney criticized it, saying he would have preferred that the court give more latitude to Arizona.

In a 5-3 ruling, the court rejected key provisions of the 2010 immigration law, but let stand a central provision allowing police to check the legal status of those stopped on suspicion of unrelated offenses.

The split decision gave something for both sides to vaunt, though the advantage clearly tilted toward the White House.

In upholding the state's controversial "show-me-your-papers" authority, the court granted a win for Arizona Gov. Jan Brewer (R) and other conservatives who have urged a tougher approach to illegal immigration.

But the justices also emphasized that that provision could be challenged again after it takes effect, making it more likely Arizona and immigration will be center stage as more voters tune in for the presidential campaign.

The decision kept the political discourse on immigration and not the economy, where Romney and Republicans see the president as vulnerable.

It arrived just 10 days after Obama announced he would no longer seek to deport certain illegal immigrants brought to the United States as children, a move that seemed to shift momentum in the president's favor by throwing Romney off balance.

Conservative Justice Antonin Scalia spent part of his dissent bashing Obama's move — which was not before the court. He accused Obama of selectively enforcing only those immigration laws that the president deems appropriate and said the Constitution's Framers would have "rushed to the exits" if they'd known an executive branch would wield such power.

In suing Arizona over its immigration law, the Obama administration challenged four separate provisions of the statute. One empowered law enforcers to check the immigration status of people during unrelated stops. Another made it a state crime for illegal immigrants to work or seek work. A third criminalized the failure of immigrants to register and carry papers proving they are in the country legally. And a fourth authorized the police to arrest those suspected of deportable offenses.

The court's majority sided with the administration on three of its four challenges. Writing for the majority, Justice Anthony Kennedy, a centrist who is frequently the high court's deciding vote, said the panel can't invalidate the "show-me-your-papers" provision because the state has yet to implement it. As a result, he said, there's no clear evidence that it conflicts with federal law.

"There is a basic uncertainty about what the law means and how it will be enforced," Kennedy wrote.

But the five-justice majority also kept the door open to future legal challenges of that provision, writing that Monday's ruling "does not foreclose other pre-emption and constitutional challenges to the law as interpreted and applied after it goes into effect."

On the other three provisions, however, Kennedy and the majority agreed with the administration that the Arizona statute encroached on elements of immigration law reserved for the federal government.

"Arizona may have understandable frustrations with the problems caused by illegal immigration," Kennedy wrote, "but the state may not pursue policies that undermine federal law."

Endorsing Kennedy's decision were conservative Chief Justice John Roberts and liberal Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.

In dissenting opinions, conservative Justices Antonin Scalia and Clarence Thomas said they would have upheld the entire law, while fellow conservative Justice Samuel Alito said he supported most of it.

Justice Elena Kagan recused herself because, as U.S. solicitor general under Obama, she had previously done work regarding the law.

Obama said he was "pleased" with the decision but expressed concern with the "practical impact" of the provision kept intact. He called on Congress to tackle comprehensive immigration reform — something Capitol Hill leaders have been loath to do since a failed push by President George W. Bush in 2007.

"A patchwork of state laws is not a solution to our broken immigration system," Obama said, "it's part of the problem."

In an initial statement, Romney was more cryptic, bashing Obama for "failed leadership" while suggesting Arizona was left with little choice but to act unilaterally.

"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," Romney said in his brief statement.

Later, Romney said at a fundraiser in Scottsdale, Ariz., that he would have preferred that the court provide more latitude to states. States under the decision would have "less authority, less latitude to enforce immigration laws," he said.

—This story was posted at 10:40 a.m. and updated at 5:58 p.m.

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