The RP’s Weekly Web Gems – The Politics of Immigration

It’s the second most-discussed Supreme Court decision of last month – on June 25, the Court handed down a ruling on Arizona’s extraordinarily controversial SB 1070, one that was hailed as a win by court-watchers on both sides of the aisle. Supporters of the law celebrated that the Court upheld a section of the law allowing police officers to check people’s legal status during their course of duties – what Arizona Governor Jan Brewer referred to as “the heart of the law” – while opponents lauded the assertion of federal authority over immigration policy.

In any case, a few things are clear: the Court struck down the provisions in SB 1070 that overstepped state-federal boundaries (namely criminalizing working in the US illegally), upheld the letter of the law that allows law enforcement officials to check immigration status, and left the door open to challenges of that law once it has gone into effect.

In what is probably the most-quoted line in the ruling, Associate Justice Anthony Kennedy writes for the majority:

“At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2(B) will be construed in a way that creates a conflict with federal law […] This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.” [SupremeCourt.gov]

That Kennedy has sided with the majority in a case that sharply delimits state power is interesting enough (though perhaps not as interesting as the fact that Chief Justice John Roberts also sided with the majority). What is perhaps more important, though, is Kennedy’s implicit dare to the federal government and, to a lesser extent, the Arizona.

His dare to the state is obvious enough: Prove to us that you aren’t racially profiling, which this law makes it dangerously easy to do. This provision, of course, is what President Obama, Attorney General Holder, and countless activists were protesting when they challenged SB 1070, and yet the Court has not really spoken Section 2, waiting for a case regarding the law’s implementation to be brought forth. Less obvious is his dare to the Obama Administration (and indeed all subsequent administrations) to enforce the federal government’s immigration laws.

By reaffirming the supremacy of the federal government in such matters, Kennedy has made it incumbent upon the federal government to enforce immigration laws. The driving force behind SB 1070 was, of course, to compensate for lack of action on the feds’ part, and the frustration underlying that law isn’t going to disappear. Rather, it seems that Kennedy has put out a surreptitiously conservative ruling of his own – while states won’t be able to take immigration enforcement into their own hands as much as some might like, the opinion may well provide ammunition for Republicans looking to elect federal officials who will enforce immigration laws more strenuously than in the past.