"The Court’s five-to-three decision in Arizona v. United States appears to be a resounding victory for the Obama Administration – legally and politically." says Margaret Stock, adjunct professor at the University of Alaska Anchorage and Counsel to the firm at Lane Powell PC

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"As Arizona now attempts to enforce one part of S.B. 1070, there will no doubt be allegations of civil rights violations – and the Obama Administration will use those examples to energize Hispanic voters to support the Obama campaign."

SCOTUS blog
Online symposium: The Court throws Arizona a tough bone to chew
Margaret Stock - Guest Guest
June 27th, 2012

Online symposium: The Court throws Arizona a tough bone to chew


Some Excerpts :

The practical problem now is that Section 2(B) is difficult to apply in a way that does not violate someone’s rights.  The Supreme Court suggested that the law could be applied constitutionally if Arizona law enforcement officers merely contacted U.S. Immigration and Customs Enforcement (ICE) without detaining a person any longer than necessary to carry out a non-immigration-related reason for the stop, detention, or arrest.  The Court suggested, however, that Arizona police would be acting unconstitutionally if they detained a motorist at a routine traffic stop longer than necessary to write a ticket.

Once the lower court lifts the injunction, Arizona will be permitted to go ahead and try to apply that Section 2(B) of SB 1070 – but it must do so in a way that does not violate anyone’s constitutional rights.   This will require very careful training.  If Arizona state and local police apply the law in a way that violates civil rights, the law will be enjoined again by the lower court.  Furthermore, the aggrieved parties will be able to sue Arizona for damages under federal law.  Thus, although Arizona may be celebrating that the injunction against one of the four parts of its S.B. 1070 law will shortly be lifted, the only provision that is no longer enjoined is the part that is most likely to fail when it is applied. (It is also a part of the law that has no “teeth,” because it has no criminal penalties.)  Any failures to apply the law constitutionally will result in expensive civil rights lawsuits against Arizona.

Contrary to what some people have said, the Supreme Court did not exactly uphold the law; instead, it said that “[t]his opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.”  The Court therefore merely paved the way for the lower courts to lift the injunction and allow Arizona to try to apply the law.  The Court’s opinion also contains several statements that will encourage the plaintiff’s bar to file civil rights lawsuits – it indicates, for example, that “ detaining individuals solely to verify their immigration status would raise constitutional concerns,” and that “it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision.”  It appears, then, that the legal fight will now return to the lower courts.

For legal scholars, the most critical point is that the Supreme Court rejected the “mirror image” theory of preemption, which had been put forth by Kris Kobach, who was Mitt Romney’s immigration advisor during the Republican primary campaign.   The “mirror image” theory – which argues that state immigration laws are constitutional if they “mirror” federal laws – was soundly rejected by five Justices of the Supreme Court, including Chief Justice John Roberts.

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