Morning Bell: Supreme Court Upholds Immigration Checks, but Administration Counters

Amy Payne /

The Supreme Court handed down its decision on the Arizona immigration law yesterday, striking some portions of the law in a 5-3 ruling but unanimously upholding immigration status checks by law enforcement. The Obama Administration countered by announcing it would tell Arizona to release most of the people whose status was in question.

Following the Court’s decision, law enforcement officers must make a “reasonable attempt…to determine the immigration status” of any person they stop, detain, or arrest for a non-immigration offense if “reasonable suspicion exists that the person is an alien unlawfully present in the United States.” That check would involve a call to the Department of Homeland Security, which maintains a 24/7 hotline for this purpose, as the federal government determines who may enter and remain in the country.

“That means police statewide can immediately begin calling to check immigration status—but federal officials are likely to reject most of those calls,” reports Stephen Dinan of The Washington Times. “Federal officials said they’ll still perform the checks as required by law but will respond only when someone has a felony conviction on his or her record. Absent that, [they] will tell the local police to release the person.”

The Administration has shown little regard for the other branches of government in most of its policy making, including immigration. President Obama’s recent move to exempt young illegals from the threat of deportation—without a law made by Congress—drew the attention of Justice Antonin Scalia in his dissent in the Arizona decision.

“To say, as the Court does, that Arizona contradicts federal law by enforcing immigration law that the president declines to enforce boggles the mind,” Scalia said.

In striking down some of the Arizona law’s provisions, the Court said that federal immigration law preempted the state law. That should mean that it is the federal government’s job to enforce these aspects of immigration law where the Court says the feds have exclusive jurisdiction. But the Obama Administration has made it clear that will not happen on its watch.

Not only is Obama’s Homeland Security Department already planning to release most people questioned under the Arizona law, but it also is paving the way to challenge the law with allegations of racial profiling. This is despite the fact that the Arizona law (S.B. 1070) expressly prohibits racial profiling in immigration checks—and the Administration’s own attorney told the Supreme Court that its challenge to the law was not based on any racial or ethnic profiling concerns.

The President’s statement yesterday planted the seeds for this strategy by saying, “No American should ever live under a cloud of suspicion just because of what they look like.”

Though the Administration’s lawyer admitted that racial profiling was not an issue in the Arizona case, the Administration is certainly looking to make it an issue now—it has set up a hotline “for the public to report potential civil rights concerns regarding the Arizona law,” the Associated Press reports.

Neither side got all of what it wanted in the Arizona immigration decision, but the Supreme Court confirmed that states have an important role to play in enforcing federal immigration law. States should not have to beg the federal government for permission to enforce laws within their borders.

As Heritage’s John Malcolm noted:

Arizona and other border states bear the largest burden when immigration laws are not enforced federally or when rules are overlooked. And the burden is significant. There are 2,000 miles along the southwest border, 370 of which adjoin Arizona. Illegal entries and border smuggling by “coyotes” are rampant, with an accompanying influx of drugs, dangerous criminals, and vulnerable people (who often end up as victims of human trafficking). Between 2006 and 2010, in the border town of Nogales alone, 51 drug smuggling tunnels were discovered. Home invasions and kidnappings are common in Arizona.

Arizona is not alone. As The New York Times reports, “In sustaining one provision and blocking others, the decision amounted to a road map for permissible state efforts in this area. Several other states have enacted tough measures to stem illegal immigration, including ones patterned after the Arizona law, among them Alabama, Georgia, Indiana, South Carolina and Utah.”

With this decision, the Court has reaffirmed the important principle that, much as he might want to, President Obama cannot prevent the states from taking action to enforce federal immigration laws just by saying that he doesn’t want them to do so.

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