SCOTUS splits Ariz. immigration decision; SB 1070 advocates now seek ‘attrition through enforcement’

Neil Munro White House Correspondent
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The Supreme Court struck down much of Arizona’s anti-illegal immigration S.B. 1070 law on Monday, saying states have little authority to set immigration rules against the wishes of the president or Congress.

But the states’ remaining authority is enough to deter prospective illegal immigrants, say reform advocates.

The judges did allow state law enforcement officials some ability to quiz people about their legal status during traffic stops or arrests.

The court had earlier OK’d state rules requiring employers to check the residency of prospective hires.

“States now have broad latitude to carry out a policy of attrition through enforcement,” said Dan Stein, president of the Federation for American Immigration Reform.

“It is now up to [state governments] to choose whether to protect the interests of illegal aliens or the interests of citizens,” he said.

“Today’s ruling from the United States Supreme Court in the Arizona immigration case contains a major victory for law enforcement in South Carolina,” said that state’s attorney general, Alan Wilson.

“The most important element of South Carolina’s [immigration] law, the ability of law enforcement to verify a suspected illegal alien’s status upon an ‘authorized lawful detention,’ was found to be Constitutional on its face,” he said in a June 25 statement.

Ethnic lobbies, such as La Raza, will likely portray the decision as a victory, because it curbs states’ ability to counter President Barack Obama’s Latino-friendly immigration policies.

The court’s decision said the Constitution gives Congress the power to set immigration laws.

Existing federal immigration laws supersede Arizona’s laws, said the court, whose decision bars laws requiring non-citizen residents to carry documents showing they are legal residents and curbs laws that allow the arrest of illegal immigrants.

Supreme Court Justice Elena Kagan recused herself from the decision, leaving 8 judges to settle the case. The decision was made by a five-to-three vote, with Justices Antonin Scalia, Clarence Thomas and Samuel Alito dissenting.

“Because Congress has occupied the field, even complementary state regulation is impermissible,” said Justice Anthony Kennedy, who wrote the June 25 decision. Kennedy was nominated by President Ronald Reagan.

But Scalia slammed his colleagues’ failure to guard states’ ability to govern themselves.

“Arizona is entitled to have ‘its own immigration policy’ — including a more rigorous enforcement policy — so long as that does not conflict with federal law… [and] it is beyond question that a State may make violation of federal law a violation of state law as well,” Scalia wrote in a biting dissent.

“Today’s opinion… deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there,” he wrote. “Neither the Constitution itself nor even any law passed by Congress supports this result.”

Republican presidential candidate Mitt Romney seemed to ally himself with Scalia and state legislators.

“I believe that each state has the duty — and the right — to secure our borders and preserve the rule of law,” Romney said.

Progressives-allied groups, such as La Raza, had argued that Arizona’s law is unconstitutional because the federal government should have the sole authority to enforce immigration rules.

They also argued that police enforcement would tend to focus on subgroups, such as Latinos or Asians.

The court approved the residency checks of suspected illegal immigrants who are arrested or stopped for suspected non-immigration violations, but said the checks would be subject to continued review and approval by federal judges.

“If the law only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision would likely survive,” said the court.

“This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect,” said the court.

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