judiciary

...the opinion serves as a road map, both for Arizona and for other states waiting in the wings with immigration-enforcement statutes of their own. It will enable them to exercise their police powers in ways that help protect the lives and property of lawful residents against an onslaught of illegal immigration and deliberate under-enforcement of existing laws by the federal government. That is very good news for the states. ...

The lower courts didn’t hold the “anti-sanctuary city” provisions of SB 1070 to be unconstitutional, and those provisions remain on the books and enforceable, unaffected by the Supreme Court’s ruling....

So where did Kennedy’s majority opinion go astray? In striking down the three provisions of the Arizona law, it bucked a recent trend of the court with respect to its pre-emption doctrine. There is no question that, in exercising its powers over naturalization and immigration, Congress can expressly pre-empt various state laws that would conflict with the federal law. But there was no express pre-emption provision in federal law that prohibited Arizona’s efforts...

Kennedy thus had to resort to various implied pre-emption doctrines, about which the court has grown increasingly suspicious. Field pre-emption, for example, has in the past recognized that when Congress so comprehensively occupies an entire field of the law, we can infer that it intended to displace any state authority over the subject. And “policy” pre-emption yields the view that states can’t act if, in the court’s judgment, they are undermining unspoken policy goals of the congressional statutory plan.

Both doctrines require the justices to engage in the highly speculative enterprise of what Congress might have intended by its silence, and, as I said, the court has grown increasingly suspicious of the very legitimacy of that enterprise... Read more about Where the Supreme Court Went Wrong in Arizona

Formerly a lawyer in John Ashcroft’s Justice Department, Kris Kobach has spent the last decade laying the legal framework for stricter immigration laws at the state and local level. He helped craft Arizona’s SB1070, which the Supreme Court partially blocked on Monday, and other legislation like it that’s taking root across the U.S...

[Kobach]: The most important provision was section 2(b), the arrest provision that the court upheld, and the provisions that the court struck down were relatively minor...

The arrest provision will come into play thousands of times every day in the state of Arizona, whenever there’s a traffic citation being issued or a crime being investigated. But the employee provision making it a state violation of law to seek employment illegally, that would only come into play once or twice a year if some county decides to launch an investigation into a particular employer. The one that really does the heavy lifting is the arrest provision, which the Court upheld...

the provisions that were struck down were two substantive crimes that the state might have otherwise prosecuted: illegally seeking work and the crime of not carrying the documents that federal law requires you to carry. That said, in most instances where a local police officer is investigating some other crime, determines or has reasonable suspicion that the individual is an illegal alien, then calls the federal government to verify that, there still will be multiple options. The police officer can hold the individual for some other state violation....

It will be felt in the other 49 states. The best way to think about it is to step back and look at what the Supreme Court has done in the last two years. In May of 2011, the Supreme Court sustained Arizona’s Legal Arizona Workers Act, which made Arizona the first state in America to require all employers to use E-Verify to verify the legality of the workforce. And now the Supreme Court has upheld the central provision of SB1070. Those are really the two biggest tools in the toolbox for what a state can do. There are only three states that have done both of those things: Arizona, Alabama and South Carolina...

There are plenty of court cases this will have an effect on. There are pending cases in the 11th circuit, because Alabama has an arrest provision nearly identical to Arizona’s. So does Georgia; that’s also pending in the 11th Circuit… There’s pending litigation in Indiana’s case and Utah’s case—those are both in the circuit courts—so it will affect all of those. The states I mentioned all have something like section 2(b); Alabama has two of the other provisions. The 11th Circuit will presumably strike those two down but uphold the arrest provision. The Alabama law has a bunch of other things in it that are not in the Arizona law, so it’s not clear how the Arizona decision will affect those other provisions... Read more about Q&A: Kris Kobach, the Legal Mind Behind Arizona’s Immigration Law

Homeland Security will not send its officers to pick up suspected illegal immigrants snared by local police in Arizona unless the person meets the agency’s priority criteria.

In a move that is a direct shot back at the state following’s today’s Supreme Court ruling regarding SB1070, senior officials at the Department of Homeland Security said Monday that immigration officers have been instructed not to go to the scene of a state or local traffic stop to help enforce immigration law, unless the person meets Homeland Security’s priorities:

• Convicted criminals

• Someone who has been deported in the past.

• A recent illegal border crosser...

The Department of Homeland Security has also ended one part of a key program that allowed state and local law police to enforce federal immigration law.

Task force agreements within the program known as 287(g), which is a partnership between federal and local governments that allows local authorities to make immigration-based arrests, have been revoked...

Homeland Security officials say the task forces are no longer ‘useful’ in states that have adopted immigration enforcement laws such as SB1070...

With the new orders from Homeland Security to focus only on priority illegal immigrants, and the rescission of the 287(G) task forces, it appears any changes that would have come from the Supreme Court’s ruling have been nullified.

That’s because even if the law leads local police to refer more people to immigration officials, many of them will not be picked up. Read more about Feds' move weakens Arizona’s ability to enforce remaining SB 1070 provision

In all the analysis of whether Arizona or Pres. Obama came out on top in the Supreme Court’s ruling on S.B. 1070 today, the key question is: how well did unemployed Americans fare?

And the answer is: Very well.

Combined with another Court ruling on an Arizona law last year, states now have all the legal room they need to pursue attrition-through-enforcement measures that cause illegal aliens to depart from a state, opening up jobs for unemployed Americans and legal immigrants.

Although headlines have focused on the court knocking down three of four provisions before it, it should be noted that S.B. 1070 began with 14 sections.  After all the challenges at several court levels, 11 of those sections are still standing – and the court today ruled against only half of the twelfth.  The one that was cleared today by the Court was the right of police to question people about their immigration status.  This may be the most important provision in causing illegal aliens to leave Arizona, judging by the frenzy of concerned reaction by the pro-amnesty forces and the Obama administration.

We have always regarded S.B. 1070 as supplementary to the far more important, earlier Arizona bill that requires every employer to use E-Verify to keep illegal aliens and tourists from taking jobs. The Obama administration also opposed this effort, but the Court last year entirely upheld the right of states to protect its workers in that way.

Combining the two rulings, Arizona now has the Supreme Court-approved model to show all other states that they don’t have to sit idly by while an estimated 7 million illegal aliens take U.S. jobs in construction, manufacturing, service, transportation and even some in the professions. These are the occupations  where most of the 20 million Americans who are unemployed or forced into part-time work are also seeking a job.

Since 1986, the prevailing theory about illegal immigration in Washington has been one of inevitability – that nothing can be done to cause illegal aliens to leave once they get into the country.  Hence, Congress passed seven amnesties between 1986 and 2000.  

Now, Arizona – and presumably a number of other states – can be full-effort laboratories to prove inevitability a false theory.  

We are heartened that even in writing the majority opinion that blocked three parts of Arizona’s law, Justice Kennedy recognized that decisions by three straight presidents to significantly ignore federal immigration law have put states in a bind.

“The pervasiveness of federal regulation does not diminish the importance of immigration policy to the States,” he wrote.  “Arizona bears many of the consequences of unlawful immigration. . . . Statistics alone do not capture the full extent of Arizona’s concerns.  Accounts in the record suggest there is an ‘epidemic of crime, safety risks, serious property damage, and environmental problems’ associated with the influx of illegal migration across private land near the Mexican border.”

In his dissent, Justice Scalia was much more specific, citing the Obama administration’s announcement just two weeks ago that it would refuse to enforce the law against illegal aliens who would benefit from the DREAM Act amnesty that Congress has rejected three times.

“After this case was argued and while it was under consideration,” Scalia wrote, “the Secretary of Homeland Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants under the age of 30.

“The president said at a news conference that the new program is ‘the right thing to do” in light of Congress’s failure to pass the Administration’s proposed revision of the Immigration Act.  Perhaps it is, though Arizona may not think so.  But to say, as the Court (majority) does, that Arizona contradicts federal by enforcing application of the Immigration Act that the President declines to enforce boggles the mind.”

As if to underscore Scalia’s assessment of the current administration as a nullifier of congressionally-passed laws, Homeland Security Secretary Janet Napolitano only hours after the ruling, announced that she would suspend yet another enforcement required under federal immigration laws.  Because the Court ruling will result in a lot more illegal aliens being brought to the attention of the feds, she said, her department will suspend the 287(g) program in Arizona, and pledged that nothing in the ruling will interfere with the administrative amnesty announced last week.

Fortunately, all states now have a bright green light from the Court to follow Arizona’s lead in enforcing the laws in the way that Congress intended, even if the president insists on violating those laws.

(This analysis originally appeared as an op-ed on FoxNews.com)
  Read more about Supreme Court give states a green light to follow Arizona's lead on immigration

The Supreme Court today invalidated three of the four provisions of Arizona’s SB 1070 law before the court. In a 5-3 opinion in Arizona, et. al. v. United States, the Justices upheld, for now, Section 2(B) of the law which requires police, after a lawful stop, to check the immigration status of a suspected illegal alien. The Court found preempted sections that: make failure to comply with federal alien-registration requirements a state misdemeanor (Section 3); establish a misdemeanor for an illegal alien to seek or engage in work in the State {Section 5(C)}; and authorize state and local officers to arrest without a warrant a person an officer has probable cause to believe has committed a public offense that makes the person removable from the United States (Section 6).

The opinion determined that it was improper for a lower court to enjoin the status check provision before the court had an opportunity to see it in action...

The Court determined that the mandatory nature of the status checks does not interfere with the federal immigration scheme...

The opinion said that Section 3 of the Arizona law intrudes on the field of federal alien registration. Therefore, it is not permissible for a state to establish a misdemeanor for failure to carry federal alien-registration documents...

Section 5(C)’s criminal penalty for seeking employment interferes with the federal regulatory system, the Court found. The Justices interpreted the Immigration Reform and Control Act of 1986 (IRCA) to mean that Congress decided it would be inappropriate to impose criminal penalties on unauthorized employees, so it follows that a state law to the contrary is an obstacle to the regulatory system Congress chose....

The opinion said that warrantless arrests of certain aliens suspected of being removable also creates an obstacle to federal law...

The opinion affirmed, in part, the 9th Circuit Court of Appeals ruling on Sections 3, 5(C), and 6 and reversed, in part, the ruling on Section 2(B). That section is now remanded to the 9th Circuit for further consideration. Read more about Supreme Court Invalidates 3 of 4 SB 1070 Provisions

The Supreme Court upheld a key part of Arizona's tough-immigration law but struck down others as intrusions on federal sovereignty, ...

The court backed a section of the Arizona state law that calls for police to check the immigration status of people they stop...

That section was one of four at issue before the high court. The others make it a crime for immigrants without work permits to seek employment, make it a crime for immigrants to fail to carry registration documents, and authorize the police to arrest any immigrant they believe has committed a deportable offense. Those other three provisions were struck down.

Five justices were in the majority choosing to strike down the three provisions. Two dissenting justices—Antonin Scalia and Clarence Thomas—argued that the whole law should have been upheld, while a third dissenter, Justice Samuel Alito, would have upheld three provisions and struck down one...

Arizona's illegal-immigration measure, officially titled the Support Our Law Enforcement and Safe Neighborhoods Act and known as SB 1070, reflected outrage among tea-party conservatives over what they considered lax enforcement by federal immigration authorities...

The debate comes as Hispanics continue to grow as a share of the electorate, particularly in battleground states such as Nevada, Colorado and Florida.

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Read the full Supreme Court Opinion: Arizona Et Al.. v. United States Read more about Supreme Court Upholds Key Part of Arizona Law