“Papers Please” is Pre-empted
The Supreme Court today threw out three sections of the Arizona “papers please” law. The court deferred decision on the validity of a fourth section. Most commentators are calling this a “split decision,” but it’s a “split decision” only in the sense that the Bradley-Pacquiao fight was a split decision. After all, Pacquiao won some of the rounds and one of the scorecards. It’s just that he lost the fight.
In 2010, the Arizona legislature enacted and Governor Jan Brewer signed S.B. 1070. The federal government sued for an order that the law was unconstitutional. The lawsuit was based on a legal doctrine known as “pre-emption.” The doctrine comes from the Supremacy Clause of the United States Constitution, which says that federal law is “the supreme law of the land.” In case there is any doubt what that means, the Supremacy Clause specifies that federal law supersedes “anything in the constitution or laws of any state to the contrary.”
Over the past 220 years or so, Congress has adopted a whole slew of laws about immigration, naturalization, and the rights and obligations of foreign visitors. Where Congress has spoken, states are not free to act. Furthermore, where the courts divine a Congressional intention to forego regulation, states are also not free to act. These are the long-standing, well-settled rules of pre-emption.
In the lower courts, the federal government won a “preliminary injunction” against four of the provisions of S.B. 1070 – meaning that the lower courts found that four provisions of the law were probably pre-empted by federal law and therefore could not go into effect during the pendency of the lawsuit. Those four provisions were:
- Section 2B, which would require Arizona law enforcement officials in certain circumstances to contact federal officials to verify the immigration status of people who are the subject of stops or arrests.
- Section 3, which would make a violation of federal “alien registration” requirements a state crime.
- Section 5C, which would make it a state crime for an illegal alien to seek or hold employment in Arizona.
- Section 6, which would authorize Arizona law enforcement officials to arrest people they think are probably “removable” – meaning legally subject to federal deportation.
On appeal to the Supreme Court, the court agreed with the lower courts as to sections 3, 5C and 6. The court concluded that those provisions of S.B. 1070 intruded impermissibly into an area that is covered by federal law; those provisions are therefore pre-empted.
The court disagreed about section 2B, and concluded that it is not pre-empted by federal law. That may sound like a victory for S.B. 1070 proponents, but the Supreme Court had more to say.
First, the court said only that the law is not pre-empted “on its face.” Lawyers use the term “on its face” to talk about a law in the abstract. When they want to talk about how a law will operate in the real world, they use the term “as applied.” In general, where the language of a law might be constitutional and might not, depending how it is applied, the law is said to be not unconstitutional “on its face.” Here, the law has never been applied, and the federal government’s challenge was to the law “on its face.”
In this case, the Supreme Court said only that section 2B might be applied by Arizona law enforcement officials and Arizona courts in a way that will be constitutional, and therefore the law is not unconstitutional “on its face.” The court left the door wide open to considering, after S.B. 1070 has been applied a few times, whether the law is pre-empted.
Second, the court did not consider how the Fourth Amendment might apply. The Fourth Amendment guarantees the right of individuals to be free of “unreasonable searches and seizures” – including arrest, which is a seizure of a person. The court did nothing wrong in this respect: the Fourth Amendment was not the basis of the federal government’s lawsuit. The purpose of the federal lawsuit was to vindicate federal authority under the Supremacy Clause.
The simple-sounding bar against “unreasonable searches and seizures” has given rise to a voluminous, complex body of law governing when and how a person can be stopped, questioned, searched, arrested and confined. There are all variety of ways that S.B. 1070 may violate the Fourth Amendment in its application.
In particular, it will be interesting – in a perverse sort of way – to see what evidence Arizona law enforcement officers give to justify concluding that a person walking around the Arizona streets is likely an illegal alien. Someone speaks with an accent? So does Henry Kissinger, and he was secretary of state. Someone speaks with a Mexican accent? So does the family of the former president of Mexico, on their way as tourists to the Grand Canyon. Someone who has a little Mexican flag on the car antenna? Someone who has a can of Tecate? The fact is, short of someone walking up to an officer and volunteering, “I’m an illegal alien,” it’s not clear what set of real-world circumstances could give rise to a “reasonable suspicion” that a person is an illegal alien.
There are a whole host of lawsuits pending against S.B. 1070, filed by organizations other than the federal government, asserting Fourth Amendment claims, Equal Protection claims, First Amendment claims, and so on. This fight ain’t over.
I can’t leave this subject without noting the latest unjudicial act of Justice Antonin Scalia. Scalia threw into his dissenting opinion a short discussion and critique of President Obama’s recent announcement that some illegal immigrants will be permitted to apply for work visas. That announcement was categorically irrelevant to the application of the Supremacy Clause to S.B. 1070. Mentioning and criticizing that program was certainly Scalia’s way of announcing his endorsement of Mitt Romney, or at least his anti-endorsement of President Obama. American judges are expected to stay out of partisan politics, but Antonin Scalia, he of Vice President Dick Cheney’s duck-hunting club, has never regarded himself as subject to the same rules as other judges.