Despite premature rejoicing among immigration restrictionists not once but twice — first after oral argument, where Obama Solicitor General Donald Verrilli seemed to really take it on the chin, and then when the first reports of this morning’s decision were Tweeted out — the reality is that the Obama administration won much more than it lost today in the Supreme Court ruling on the Arizona immigration law. The part that restrictionists were cheering was that which allows police who have arrested somebody for other reasons to also check their citizenship/residency status. That is, of course, the most prominent part of the law; hence the rejoicing on the hard right.
A closer look, however, shows that the provision survived only because A) it applies only with strict limitations on its reach, and B) because state courts have not had a chance to officially construe its meaning. In other words, depending on how state courts interpret the law, even that provision may in the future by thrown out by the Supremes.
Meanwhile, three other important provisions, including one making it unlawful for illegal aliens to take jobs in Arizona, were thrown out. This is a big deal. What the high court — with not only Kennedy but also Chief Justice Roberts joining the liberals — is saying is that federal law should be construed, even without express provision, to pre-empt (or preclude) state law in those same areas. This is a big loss for state’s autonomous powers. To quote from the court’s syllabus (with my emphasis added), “Because Congress has occupied the field, even complementary state regulation is impermissible”. This is, frankly, a shock to me. It means that on any subject even remotely touching on foreign policy on which Congress legislates, the states are not permitted even to pass their own laws in pursuit of the same objectives.
Restrictionists also might gag at this line from the syllabus: “As a general rule, it is not a crime for a removable alien to remain in the United States.”
I count myself as a “moderate restrictionist.” On the merits, however, I thought Arizona was entirely right, and the administration entirely wrong. I therefore am not happy with this decision. I think it amounts to a huge infringement upon state policing authority. It certainly supports much of the Obama argument — an argument which, to me and many others, still seems ludicrous.