The U.S. Supreme Court struck down much of Arizona's illegal immigration law Monday morning, leaving its most controversial, show-me-your-papers provision standing, and that only provisionally. Experts say the decision provides a road map to federal courts evaluating immigration laws enacted in places like Alabama, Georgia and even Farmers Branch, Texas.
The town's six-year legal odyssey, chronicled in last week's cover story), has included several iterations of an ordinance requiring proof of legal immigration status for apartment rentals; several federal court defeats; and one federal appeals court rejection. Led by immigration warrior and Kansas Secretary of State Kris Kobach, the town is petitioning the entire U.S. Court of Appeals for the 5th Circuit for a re-hearing. We reached out to Kobach, who helped craft and defend both Farmers Branch's and Arizona's laws, but his voicemail is full and we suspect his email inbox is being inundated with media requests.
We did, however, speak at length with him while researching the recent Farmers Branch story. Speaking about pre-emption, the Supremacy Clause giving the Feds the trump card over state and local laws, Kobach said, "The DeCanas definition is that a law is a pre-empted regulation of immigration if it determines who may enter the U.S., or the conditions under which legal entrants may remain."
In response to assertions that local immigration ordinances complicate and frustrate federal enforcement, he said, "We have uniform federal immigration laws, but they're vigorously enforced in some places and not enforced at all in other places. [Laws in Farmers Branch and Arizona] fill in the gaps, creating more even law enforcement terrain. The ordinance in Farmers Branch is a precise mirror of federal law."
In other words, the Farmers Branch ordinance has no bearing on who can and cannot enter the country, instead working hand-in-glove with the Feds.
But would the Supreme Court justices see it the same way since ruling much of Arizona's immigration law pre-empted by federal law? You can walk through the opinion and read some tea leaves.
A key provision of the Arizona law would have turned the failure to carry an immigration registration card into a misdemeanor under state law. Arizona argued that the provision's goals were complementary to federal law, and that its aims were identical. The justices didn't buy it. The result, they wrote, would be a regulatory morass.
"If...the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations, 'diminish[ing] the [Federal Government]'s control over enforcement' and 'detract[ing] from the 'integrated scheme of regulation' created by Congress," the opinion read.
The Court also struck down a provision charging undocumented immigrants with a misdemeanor for soliciting work. Congress, the justices reasoned, penalized employers both civilly and criminally for knowingly hiring undocumented immigrants. It made a conscious choice not to go after undocumented employees.
"In the end, the [Immigration Reform and Control Act's] framework reflects a considered judgment that making criminals out of aliens engaged in unauthorized work -- aliens who already face the possibility of employer exploitation because of their removable status--would be inconsistent with federal policy and objectives."
One of the Arizona law's more controversial provisions -- allowing police to detain suspected undocumented immigrants accused of some "public offense" that makes them deportable -- actually gave state and local law enforcement officers more power than even federal agents enjoyed, the justices wrote. When a federal agent encounters an undocumented immigrant, they'll usually issue them an administrative document called a "notice to appear," summoning them before an immigration judge. If the judge deems them removable, or if they fail to show, he or she issues a removal order. Only then is a warrant signed. Arizona argued that the provision would be enforced in the spirit of cooperation with the Feds. The Court questioned the state's understanding of the word "cooperation."
"There may be some ambiguity as to what constitutes cooperation under the federal law; but no coherent understanding of the term would incorporate the unilateral decision of state officers to arrest an alien for being removable absent any request, approval, or other instruction from the Federal Government."
The Court did, however, uphold the most hotly contested component of the law -- one critics argued gave police a license to racially profile. It required officers to detain anyone they suspect is undocumented until their immigration status is determined. The Feds say the provision could run afoul of the Constitution by prolonging detention. The Court wasn't so sure. It depends, they believe, on how the law is implemented. For example, if a guy gets stopped for jaywalking and police detain him for too long while they check his status, that's a problem. But if a guy gets arrested for drunk driving, he's going to jail anyway; an immigration check won't prolong his stay. In fact, his status would be verified through ICE's Secure Communities program anyway. Under that kind of circumstance, the justices reasoned, this provision could work.
The justices were careful, though, to leave the door wide open to future challenges. "This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect."
The message was aimed at Arizona, but it seemed to be intended for a broader audience too. "It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States."
Does that mean the Supreme Court may not buy into Kobach's idea of cooperation in Farmers Branch? As Kobach said himself, the Farmers Branch ordinance is only pre-empted by federal law if it determines who can enter the country and under what conditions they remain. In Monday's decision, the court hewed closely to that precedent, striking down provisions on alien registration and detention, leaving only a tiny window for police to verify someone's status with ICE, provided the length of detention is proportionate to the alleged offense. Only one piece of the law survived, and even that was saddled with a giant caveat.
But it was their decision regarding Arizona's employment provision that caught our eye. Unlike the others, this wasn't an instance where the state would be stepping all over ICE's toes. Congress had simply decided not to criminalize employment-seeking undocumented immigrants. It's the intent that counts, the justices note.
Nor has Congress sought to outlaw providing shelter to undocumented immigrants. Could we read that to mean the Supremes would strike down a regulation our elected representatives never intended to be enforced -- one that would create a regulatory island in the middle of the Metroplex?
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The 5th Circuit came down hard on Farmer Branch a few months ago: "We conclude that the ordinance's sole purpose is not to regulate housing but to exclude undocumented aliens, specifically Latinos, from the City of Farmers Branch and that it is an impermissible regulation of immigration."
The Department of Justice said Farmers Branch's understanding of federal immigration law rested upon a fundamental misunderstanding. It would deny them housing based on a determination that isn't final until the immigration judge issues his or her decision. Immigration status isn't black and white.
As the justices noted in Monday opinion, undocumented immigrants can seek asylum or prosecutorial discretion on humanitarian grounds. "Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission," the justices wrote. "The foreign state may be mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation's foreign policy with respect to these and other realities."
Judging by today's ruling, it seems unlikely Farmers Branch will find a friendlier audience in the 5th Circuit or the Supreme Court so long as its ordinance turns a deaf ear to the "realities" a judge has to consider.