Wednesday, June 27, 2012

Just Because You Declare Victory, It Doesn't Mean You Won

She is a piece of work. Jan Brewer, that is.

On Monday, the Supreme Court decision on the constitutionality of Arizona's immigration law was released. Brewer immediately claimed victory even  though the bill was basically gutted.

I suspect that Brewer would have declared victory even if the Court had struck down all the provisions. She seems impervious to facts. Remember the headless bodies? And the non-existent increase in crime?

So what exactly happened? Four provisions of  Arizona's SB1070 were challenged by the Obama administration. Specifically:

Section 3 which made it failure to comply with federal alien registration requirements a state misdemeanor was declared unconstitutional by a vote of 6-2.

Section 5 making it a misdemeanor for an unauthorized alien to seek or engage in work in the State was declared unconstitutional by a vote of 5-3.

Section 6 authorizing officers to arrest without a warrant a person  any person that the police has probable cause to believe he or she has committed any public offense that makes the person removable from the United States was declared unconstitutional by a vote 5-3.

Finally, Section 2(B) was unanimously upheld. It provides that officers who conduct a stop, detention, or arrest must in some circumstances make efforts to verify the person’s immigration status with the Federal Government. However, the Court said "This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect." 

Remember the objective of SB1070 was to achieve "attrition through enforcement." In other words, make life so miserable that people will self-deport. Ironically, the only provision upheld might end up making the life miserable for police officers as they try to enforce it without triggering civil rights lawsuits.

During oral arguments Chief Justice Roberts said, "It seems to me that the federal government just doesn't want to know who is here illegally or not". Supporters of the Arizona law viewed Roberts' statement as indication that their cause was right. At the time, I wrote:

Let's say Chief Justice Roberts is absolutely correct. The federal government made a conscious decision to be lax in its enforcement of immigration law; does this mean that states have a constitutional right to take up the slack? I am not aware of any section of the Constitution granting said right to the states.

Apparently, the Court also could not find such a section in the Constitution. One the arguments used to justify the constitutionality of the law was that Arizona was simply "cooperating" with the federal government. Justice Kennedy wrote:
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.
In other words,  no state has the constitutional right to interfere with immigration without the consent of the federal government. As it should be. We cannot have 50 different approaches to immigration. It will lead to chaos.

Brewer can claim victory all she wants. The section of the law that was upheld was not a key provision. Checking the immigration status of someone who has been stopped or arrested on matters unrelated to immigration is nothing new. Moreover, the Court has made it clear that it will revisit said provision if implementation leads to long delays in releasing or detaining individuals.

Make no mistake about it. What happened on Monday was a complete and utter repudiation of Kris Kobach's legal theory on immigration. And any conservative, Republican that says otherwise is not helping the conservative movement or the Republican Party.