Scalia's dissenting opinion made clear that he believed the majority's decision was fundamentally wrong and opposed a kind of immigration federalism in which states act in their "sovereign" capacity.
"As a sovereign," Scalia opined, "Arizona has the inherent power to exclude persons from its territory, subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress."
Tim Gabor
Social Eye Media
Governor Jan Brewer signing SB 1070
on April 23, 2010, starting a fight she will never win.
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This is the view of both Pearce and Brewer. In fact, when Brewer did her impersonation of President George W. Bush's premature "mission accomplished" speech aboard the USS Abraham Lincoln in 2003, she also called the court's 1070 ruling a "victory for the Tenth Amendment," the amendment that essentially guarantees the principle of federalism, a byword for "states' rights" among Teabaggers.
But Scalia did not find the majority's decision to be a win for the Tenth Amendment.
He wrote: "Today's decision — approving virtually all of the Ninth Circuit's injunction against enforcement of the four challenged provisions of Arizona's law — 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."
Sure, the majority allowed section 2(b) to survive, and that is unfortunate, particularly if you live in Arizona or are passing through and happen to speak English with a Spanish accent (or speak no English at all), or if your skin boasts more melanin than that of the average Anglo.
However, the majority is allowing the injunction to be lifted on 1070 only on the very narrow basis that it does not violate the federal immigration scheme and will only involve a phone call to U.S. Immigration and Customs Enforcement to determine an individual's immigration status during a lawful stop.
That's a phone call many officers already have been making voluntarily, by the way. The difference with 1070 is that such an inquiry will be mandatory, with the possible penalty being lawsuits filed by ticked-off nativists against law enforcement agencies.
Under 1070, this inquiry to ICE is supposed to occur only when an officer has "reasonable suspicion" that an individual he or she has stopped is "unlawfully present" in the country.
Somehow, an officer is supposed to achieve this without unreasonably prolonging the detention of the stopped individual.
The DHS since has announced that it will not assign more agents to answer phone calls from Arizona, nor will it respond to inquiries that do not mesh with its enforcement guidelines, guidelines that prioritize the detention and removal of "criminal aliens."
Many immigration advocates insist that the DHS' prioritization policy is hooey. Otherwise, how would the Obama administration have been able to deport nearly 1.5 million people in three and a half years?
This may be true. Still, this news out of the DHS should give some pause to officers expected to enforce 1070.
In a press conference following the court's decision on Monday, American Civil Liberties Union national executive director Anthony Romero asserted that the lifting of the injunction against 2(b) is "an invitation to racial profiling."
Ask any cop you know and he'll tell you that within a couple of minutes of driving behind you, he can find a reason to pull you over. And once you're pulled over or stopped on foot, it's only a hop, skip, and a jump to an inquiry about your nationality.
In this sense, the court's decision truly is as "troubling" as Romero characterized it for the media. As you read the majority's opinion, there are moments that you wish Justice Kennedy and his colleagues were neatly ensconced in one of those carnival dunk tanks with a basket of baseballs at the ready.
For instance, Kennedy acknowledges that "officers must make an inquiry even in cases where it seems unlikely the Attorney General would have the alien removed."
His example of someone unlikely to be removed? "[A]n alien [who] is an elderly veteran with significant and longstanding ties to the community."
So, uh, keep abuelo in the attic, mami, otherwise he might get hassled by la policía.
With that one passage, the court acknowledged the racial profiling aspect of SB 1070. The bad news is, the majority let 2(b) slide anyway.
The good news is that it kept the door open to challenges to 1070 on grounds that it violates the Constitution's Fourth Amendment, which prohibits unreasonable search and seizure, and the Fourteenth Amendment's implied prohibition against racial profiling
"This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect," Kennedy wrote, in what reads like an invitation to 1070's opponents.
Fortunately, the white hats won't wait for 1070's injunction to be formally lifted, a process that may take three or four more weeks.
In that time, the ACLU and other groups suing Arizona in a separate case, Friendly House v. Whiting, have signaled that they will petition Judge Bolton to maintain an injunction against 2(b).
As I discussed in a blog post following the oral arguments over 1070 ("SB 1070 and a Ray of Hope," April 26), the plaintiffs in Friendly House already asked Bolton for an injunction against 2(b) on constitutional issues other than preemption, the grounds upon which Kennedy and the majority decided Arizona v. United States. (That is, federal immigration law trumps state law.)
