Join us for our weekly review of the politics, policies, and personalities of the District of Columbia, Maryland and Virginia.
The Supreme Court ruled today on Arizona’s immigration enforcement law. The decision upholds the “check your papers” portion of the statute, but voids the rest. We look at the political implications — and consider the decision’s effect on people in Arizona — in our region and throughout the country.
- Corey Stewart Chairman, Prince William Board of County Supervisors
- Jeffrey Rosen Professor of Law, George Washington University Law School; Legal Affairs Editor, The New Republic; Author, "The Supreme Court: The Personalities and Rivalries That Defined America" (Times Books)
Supreme Court Decision: Arizona et al. v. United States
The full text of the Supreme Court decision in Arizona et al., vs. the United States is below:
MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, making sense of the upheaval at the University of Virginia, but, first, in a decision that's being called a win for the Obama administration and a loss for the state of Arizona, the U.S. Supreme Court this morning struck down much of Arizona's controversial immigration law. The 5-to-3 decision, with Justice Kagan recusing herself, says the federal government has the power over immigration enforcement, and Arizona cannot usurp it.
MR. KOJO NNAMDIWhile Arizona's immigration law has prompted fear among the state's Latino immigrant community, the court did not deal with the issue of racial profiling, focusing instead on the relationship between federal power and states' rights. Joining us to examine the ruling is Jeffrey Rosen. He's a professor of law at George Washington University Law School, legal affairs editor at The New Republic and author of "The Supreme Court: The Personalities and Rivalries That Defined America." Jeff Rosen, thank you for joining us.
PROF. JEFFREY ROSENGood to be here.
NNAMDIAlso joining us by phone is Corey Stewart. He's chairman of the Prince William Board of County Supervisors. Corey Stewart, thank you for joining us.
MR. COREY STEWARTMy pleasure. Always great to be on your show, Kojo.
NNAMDIThank you. If you'd like to join the conversation yourself, you can call us at 800-433-8850. If you have questions or comments about this ruling and other rulings that we will mention later, 800-433-8850, or send email to firstname.lastname@example.org, send us a tweet, @kojoshow, or you can go to our website, kojoshow.org. Join the conversation there. Jeff Rosen, which parts of the Arizona law did the court strike down, and which parts did it let stand?
ROSENIt let stand one part and struck down the other three. So the part that let stand was the one involving police checks. This was the one, as you said, that's raised questions about racial profiling, and it requires the police to check the immigration status of people before releasing them and allows the police to stop anyone suspected of being an undocumented immigrant. And the court said it wasn't clear that this would conflict with federal law.
ROSENIt stressed that the -- Arizona was prohibited from engaging in racial profiling and basically invited challenges after the fact if it turns out this is being used for profiling. But very significantly -- and, you know, it is a big win for federal power and for the administration. The other three parts of the law were all struck down. First, there was the provision that made a new state law crime of being in the country illegally, and the court said that this conflicted with the fact that Congress didn't leave room for the states to regulate in this field.
ROSENSecond, there is a ban on working in the state so that it's a crime to actually seek employment in the state, and the court struck that down on the grounds that Congress chose not to impose criminal penalty on illegal aliens who seek employment. And then, finally, there was a provision allowing the warrantless arrest of individuals who are believed to have committed a deportable crime. And the court struck that down on the grounds that it conflicted with the fact that Congress is supposed to decide whom to deport, and the state should have no role in that determination.
NNAMDIJeff Rosen, is it therefore correct to say that the judges essentially rule that only the federal government can enforce immigration policies?
ROSENYes. It said that when federal policy is clear, the states may not challenge it, and only in cases where the states are clearly acting in connection, in collaboration with the federal government, rather than opposition to it, is state action permissible.
NNAMDICorey Stewart, Prince William County has tried to deal on its own with immigration issues. What does this ruling say to you? What does it mean for counties like yours that believe the federal government is not doing enough to stop illegal immigration?
STEWARTThe court upheld today the provision of the Arizona law that was modeled upon Prince William County's policy which requires police officers to check immigration status of anyone who an officer stops and has a reasonable suspicion to believe that is here illegally. That was the original Prince William County policy. We've subsequently changed it a little bit, but the court upheld the key provision of the Arizona law. Those other provisions of the law -- not surprisingly, you know, Arizona or any other state, no state has the right to create its own immigration law.
STEWARTBut what the court said today was that the state does, in fact, have a right to enforce federal immigration law. That's what Prince William County does. That's what Arizona is now going to do. So I would consider this a win. That was always the key provision. It's a provision we've had in place since 2007. There has not been a single case of substantiated racial profiling since it's been in place, and our violent crime rate has been cut in half in Prince William County.
NNAMDISo, Jeff Rosen, you make the point that the court apparently left that aspect of it open to challenge again if that aspect is challenged on the basis of racial profiling?
ROSENThat's right. The Arizona law prohibits racial profiling. And since it had not yet gone into effect, the court decided there wasn't enough evidence either way to entertain a challenge on those grounds. But if in the future it turns out that the enforcement patterns of people who are stopped seems to raise the suspicion of racial profiling, a challenge is always possible. Of course, challenging racial profiling is very difficult.
ROSENAccording to the court's case law, you have to prove that race was the sole factor in a stop, not one of many factors, so it's not going to be an easy road ahead. But at least, in theory, that possibility is open.
NNAMDIIn case you're just joining us, we're discussing today Supreme Court ruling striking down much of Arizona's immigration law. We're talking with Jeff Rosen -- he's a professor of law at George Washington University Law School and legal affairs editor of The New Republic -- and Corey Stewart who is the chairman of the Prince William Board of County Supervisors. Corey Stewart, you say that your own law in Prince William County has not been challenged on the basis of racial profiling. Has the issue been raised at all? Are there any moves afoot to challenge it?
STEWARTWell, there was a case in November of 2007 which challenged the law on those grounds, but Judge Chacharis, a federal district court judge in Alexandria, found that the law was constitutional, lawful on its face. Interestingly, the -- that judge's decision back in 2007 almost directly mirrors the Supreme Court's decision today which said, look, the law is constitutional. It's lawful. But, you know, there's always a possibility that the state of the locality could abuse it.
STEWARTIn which case, if there is racial profiling going on, that would be unlawful. That has not occurred in Prince William County. We haven't had a single case of substantiated racial profiling. There have been accusations over the past five years, but all of those have been dismissed. And, you know, if it's done right, if you train your officers correctly and make -- you can help to make sure that there isn't racial profiling. I think we're doing it right in Prince William, and I'm confident that Arizona will follow a similar model.
NNAMDIJust on the basis of a technicality, what happens if someone who happens to be an American citizen, born and bred, who has neither a passport or a driver's license, what would that individual have to do to prove to the officer who stopped him or her that he or she is an American citizen?
STEWARTWell, it's important to note that neither Prince William County's policy or the Arizona policy now requires a person to prove that they are here lawfully. What it simply requires is the officer check the immigration status. The officer...
STEWART...does not have to make it an absolute determination by -- after making that check. It just requires him to make that check.
NNAMDIJeffrey Rosen, talk about the 5-to-3 split on this vote. Does this follow predictable alliances on the court?
ROSENIt does not, and it's a very interesting split, which may bode well for the administration on health care reform. We'll see, of course. But it was the three liberals -- because Justice Elena Kagan was recused...
ROSEN...were joined by Anthony Kennedy and Chief Justice John Roberts. And the three -- so they were partially concurring and partially dissenting justices were Justices Antonin Scalia, Samuel Alito and Clarence Thomas. Essentially, it was a clash between national power versus states' rights. And Roberts and Kennedy, like the liberals, took a very expansive view of the federal government's policy to be exclusive in the area of immigration.
ROSENAnd Scalia wrote quite a remarkable dissent saying that states retain their sovereignty. He criticized the national government for failing to enforce its own laws and said that the states were free to challenge it. So it was really almost the Civil War being fought all over again. Now, if, of course, Kennedy and Roberts take a similarly nationalistic view in the health care case, then perhaps, they'll vote to uphold it, but that is something that we'll find out on Thursday.
NNAMDIThe toughest parts of the Arizona law never took effect because the Obama administration got a court order to block them. What happens now?
ROSENNow, the provision that has been upheld, which is the one we've been talking about...
ROSEN...the one that allows the police stops, can go into effect. The other three may not. And Arizona will have to decide whether to go back to the drawing board and adopt other provisions that might be upheld. In Alabama, for example, the toughest anti-immigration law in the country, there are a series of provisions on the books which may or may not stand after the Supreme Court decision.
ROSENThey include a decision to publicize the names and photographs of all illegal aliens, to check immigration status at schools and a series of other things like that which don't fall clearly on one side or the other of the line of the issues the court was considering in the Arizona case. So that means that there's lots of litigation ahead.
NNAMDIHere is Albert in Hyattsville, Md. Albert, you're on the air. Go ahead, please.
ALBERTYes. Thank you. My question is exactly about this problem of checking someone's immigration status. If the police in Arizona are now going to be required to do this with anyone they detain, or even if only someone they suspect because of their accent or their background if you're illegally, how is an American supposed to prove their immigration status? We don't have papers, and we're not in the federal...
NNAMDIWell, allow me to go to Corey Stewart again because my understanding of what he said is that it is the officer's responsibility to check the immigration status, and the officer can do that with Immigration and Customs Enforcement, ICE. It is not the obligation of the individual to prove his or her immigration status. But, Corey Stewart, correct me if I'm wrong.
STEWARTYeah. That's exactly right, Kojo. The way it works is here in Prince William County, the officer -- and, you know, we can go into the legalities of this, too, but we cannot detain anyone more than a reasonable period of time while making the check. So what the officer must do is they will essentially ask a series of questions: where were you born, are you a citizen of the United States, et cetera?
STEWARTAnd based upon those checks, and then, of course, he'll check the ID that you have. If you have a driver's license from Virginia that requires -- you know, in Virginia, you need to show legal residency before you can get a driver's license. So at that point, the check is complete.
STEWARTBut even if the officer is unable to make a determination, all that happens is, if the person happens to be arrested for the offense, when that person is brought in front of the magistrate, the information or the determination that the police officer made on the street is relayed to the magistrate so the magistrate can use that information in determining whether or not to hold that person or to release them. And so it's not the obligation of the person who's pulled over or who is arrested to prove immigration status. It is simply an obligation on the officer to check that status.
NNAMDIAlbert, thank you very much for your call. Does that answer your question?
ALBERTNo, it doesn't. 'Cause in the Arizona case where there is no state law, you know, requiring proof of residence -- legal residency for the driver's license, the question is how are they going to look up someone who claims to be an American but doesn't have a driver's license, passport or birth certificate? We're not in the federal immigration database.
NNAMDIMy answer would be that if the Immigration and Customs Enforcement cannot indicate that this person in this country illegally, you have to release them. Don't you, Corey Stewart?
STEWARTWell, yeah. I mean, the whole point of the check is not for the officer. The reason for the check is to provide that information to the magistrate, and then only after the magistrate -- only after the person is actually brought into jail does the person's immigration status get confirmed. And that's a much more extensive search. But, again, there is no obligation for anybody to carry ID, passport, birth certificate, nothing like that, neither in Arizona nor in Prince William County.
STEWARTIt's simply a mandate on the officer to make the check.
STEWARTHe does not have to confirm it, one way or the other.
NNAMDIJeff Rosen, Albert's confusion about this and the confusion of many other people about this because it's so complicated is presumably one of the reasons why there might be a challenge somewhere along the way?
ROSENThere is indeed. And the court addressed some of this confusion in its opinion. Justice Kennedy said detaining people solely to verify their immigration status would raise constitutional concerns. And he gave a couple of hypotheticals. He said what -- imagine you're stopped for jaywalking. Can the police hold you longer than the time of the stop to get an answer about your status? And he said, no, the inquiry doesn't have to be completed during the jaywalking stop.
ROSENThen he said, well, imagine you're stopped for driving under the influence. Can they actually keep you in the station before they have found out the answer? And he seemed to suggest that holding you longer than you would've otherwise have been held in order to verify your status might raise concerns. So all this suggests that, yes, indeed, there could be -- they're called as-applied challenges or subsequent litigation of particular individuals who feel that they're being detained longer than they would've been in order to verify their status.
NNAMDIAlbert, thank you for your call. Corey Stewart, thank you for joining us.
STEWARTMy pleasure. Thank you.
NNAMDICorey Stewart is chairman of the Prince William Board of County Supervisors. Jeffrey Rosen, the Supreme Court issued two other rulings today, striking down a Montana campaign spending law, saying the controversial Citizens United ruling applies to state and local elections. Care to comment on that at all?
ROSENYes. That's a hugely important decision. Many people had hoped that this Montana case would be an opportunity for the court to re-examine its decision in Citizens United, just as Ruth Bader Ginsburg had explicitly called on her colleagues to reconsider that decision.
ROSENBut the court summarily reversed the Montana court probably 'cause the court, both the majority opinion and the dissenting justices, had openly made clear their disdain for Citizens United and essentially refused to follow it, so I know that there are many people who'll be quite disappointed about the fact that the court didn't pick up this opportunity and will look for other opportunities to challenge Citizens United in the future.
NNAMDIThe high court also ruled today that juveniles convicted of homicide cannot be required to serve life sentences without the possibility of parole. It was a 5-4 decision. Any surprises there? Jeff Rosen? Ooh, we seem to have lost our connection with Jeff Rosen, but that is another ruling that we thought you should know of, which the Supreme Court made today. We'll probably have to discuss that at a future date. Jeff Rosen, if you -- are you back?
ROSENOh, yes. I'm sorry. I lost you for a sec.
NNAMDIThe ruling that juveniles convicted of homicides cannot be required to serve life sentences without the possibility of parole, a 5-4 decision. Any surprises there?
ROSENIt wasn't a surprise in the sense that this coalition of Justice Kennedy plus the four liberal justices had struck down things like a mandatory death penalty for juveniles in the past, as well as punishments for juveniles that were considered to be excessive.
ROSENWhat was interesting here is the strong dissent from the conservatives refusing to allow any examination of the proportionality of a crime and essentially saying that juveniles could be treated the same as adults. But it was an extremely scholarly and quite vigorous majority opinion by Justice Elena Kagan, showing her commitment to these issues, which she has not had an opportunity to weigh in on before.
NNAMDIJeffrey Rosen, thank you for joining us.
ROSENThank you. It's a pleasure.
NNAMDIJeff Rosen is a professor of law at George Washington University Law School, legal affairs editor of The New Republic and author of the book, "The Supreme Court: The Personalities and Rivalries That Defined America." We're going to take a short break. When we come back, making sense of the upheaval at the University of Virginia, conversation you may want to join by calling 800-433-8850. I'm Kojo Nnamdi.
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