Ignorance is very BOLD and very FOOLISH : Governor Jan Brewer hails as a Great Victory that Section 2(B) was upheld by SCOTUS, but this section lacks teeth and the Federal Government may choose not to deport. Immigrant advocates inevitably will press civil rights challenges on an “as applied” basis

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SCOTUS Blog
Online symposium: Supreme Court (mostly) guts S.B. 1070
The Court’s opinion in Arizona v. United States is mostly a victory for S.B. 1070’s opponents
By Professor of Law Peter Spiro ( Specialist in Immigration ), Temple University.
June 25th, 2012


Online symposium: Supreme Court (mostly) guts S.B. 1070

Some excerpts :

This is a nominally split decision, but the Court’s opinion in Arizona v. United States is mostly a victory for S.B. 1070’s opponents.  Although the Court upheld the “check your papers” provision, it struck down three others that would have had much greater impact on the ground. Justice Kennedy’s opinion validates broad federal authority over immigration, allowing only marginal participation on the part of states. The decision will take a lot of wind out of restrictionist sails at the state level.

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But Section 2(B) lacks teeth: it may require state law enforcement to make immigration status determinations, but there isn’t much that the state can do with determinations once made.  The state can pass the information along to federal immigration authorities, who are then free to do nothing. In other words, Section 2(B) won’t result in anybody being deported. Justice Kennedy was, moreover, careful to keep the door open to subsequent challenges of Section 2(B) to the extent that it’s applied in an unreasonable fashion – if it were used, for instance, to justify prolonged detentions. By implementing Section 2(B), the state will buy itself little more than another round in court as immigrant advocates inevitably press civil rights challenges on an “as applied” basis.

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The decision will cramp restrictionist efforts in state capitals, on top of growing headwinds from business constituencies. Washington presents other sorts of obstacles, of course. Perhaps this is the worst of both worlds for S.B. 1070’s proponents: no clear defeat to use as a rallying call with Congress, no clear victory to secure broad laws in other states.

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