Supremes Gut Arizona's Immigration Law; Scalia Strikes Down Results of the Civil War

While one of the law's most contentious issues remains unresolved, the 5-3 ruling represented a pretty big win for civil liberties advocates. 

On Monday, the Supreme Court gutted Arizona's controversial immigration law, SB 1070, prompting a notably injudicious outburst from Justice Antonin Scalia.

In a 5-3 decision – Elena Kagan recused herself from the case – the majority ruled that 3 major provisions were unconstitutional under the Supremacy Clause, which holds that when a federal law conflicts with a state law, the former must prevail. The ”Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens," wrote Justice Anthony Kennedy on the behalf of the majority, adding that "the federal power to determine immigration policy is well settled."

The federal government had made a strategic decision not to challenge the law on the basis of the 14th Amendment's Equal Protection or Due Process clauses. Its suit didn't focus primarily on the potential for rampant racial profiling that led to so much controversy around the law in the first place. Instead, the Justice Department argued more narrowly that federal immigration law pre-empted the state's efforts to create its own regulatory scheme.

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Scalia Should Resign from the Supreme Court

Justice Antonin Scalia needs to resign from the Supreme Court.

He’d have a lot of things to do. He’s a fine public speaker and teacher. He’d be a heck of a columnist and blogger. But he really seems to aspire to being a politician — and that’s the problem.

So often, Scalia has chosen to ignore the obligation of a Supreme Court justice to be, and appear to be, impartial. He’s turned “judicial restraint” into an oxymoronic phrase. But what he did this week, when the court announced its decision on the Arizona immigration law, should be the end of the line.

Not content with issuing a fiery written dissent, Scalia offered a bench statement questioning President Obama’s decision to allow some immigrants who were brought to the United States illegally as children to stay. Obama’s move had nothing to do with the case in question. Scalia just wanted you to know where he stood.

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The Supreme Court Would Like To See Your Papers

The justices say Arizona’s immigration law has nothing to do with race—except when it pleases them.

It is a truth universally acknowledged that when the chief justice of the U.S. Supreme Court tells the U.S. solicitor general in the opening seconds of his presentation that “No part of your argument has to do with racial or ethnic profiling, does it?,” we will not be hearing a case about racial profiling. That is especially true when the solicitor general agrees. Never mind that a significant amount of the discussion over the constitutionality of Arizona’s S.B. 1070, the infamous state immigration law, ends up poring over both racial profiling and Fourth Amendment law. But you can forget that; those issues are not before the court today.

 Among the provisions of the controversial law that was copied by five other states and enjoined by a federal appeals court last year is the “papers please” provision requiring state police to check the legal status of anyone stopped lawfully but who they believe to be in the country illegally. It does lead one to wonder what kinds of thin, pretextual stops might worry a Supreme Court justice. The case recycles last month’s leading Supreme Court advocates in the health care cases, with Paul Clement returning for his role as the Reasonable States-Rights Guy, and Solicitor General Donald Verrilli reprising his role of Sober Gentleman Advocate From Another Era, which at this moment in Roberts Court history feels like a guy who brings a butter dish to a gunfight. Verrilli looks like he wants to be any place but listening to Justice Antonin Scalia—the justice most likely to be pulled over for impersonating a paid Fox News contributor—analogizing the right to demand papers of suspected illegal immigrants to the Framers’ guarantee that the states’ rights to police their own borders included “inspecting incoming shipments to exclude diseased material.”

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Undocumented Pregnant Women Forced To Give Birth While Shackled In Front Of Police

Just when you thought the nationwide crackdown on undocumented immigrants couldn’t get any more brutal, the Huffington Post reports that pregnant women in Arizona and Tennessee were detained and forced to give birth while shackled to their hospital beds because they couldn’t produce identification.

The shackling of female inmates when they go into labor has been a roundly condemned practice in prisons, but local authorities are now extending that humiliation to non-violent immigrant women whose only crime was being stopped by police without a valid license:

“When I was in bed, I was begging the sheriff, ‘Please let me free — at least one hand,’ and he said, no, he didn’t want to,” Juana Villegas said in an interview with a local Nashville television station. She was describing the experience of being shackled to her hospital bed as she went into labor. Villegas gave birth in the sheriff’s custody, after she was stopped by local police while driving without a valid license.[...]

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Prison Economics Help Drive Ariz. Immigration Law

by Laura Sullivan

Laura Sullivan/NPR

Glenn Nichols, city manager of Benson, Ariz., says two men came to the city last year "talking about building a facility to hold women and children that were illegals."

October 28, 2010

Last year, two men showed up in Benson, Ariz., a small desert town 60 miles from the Mexico border, offering a deal.

Glenn Nichols, the Benson city manager, remembers the pitch.

"The gentleman that's the main thrust of this thing has a huge turquoise ring on his finger," Nichols said. "He's a great big huge guy and I equated him to a car salesman."

What he was selling was a prison for women and children who were illegal immigrants.

"They talk [about] how positive this was going to be for the community," Nichols said, "the amount of money that we would realize from each prisoner on a daily rate."

But Nichols wasn't buying. He asked them how would they possibly keep a prison full for years — decades even — with illegal immigrants?

"They talked like they didn't have any doubt they could fill it," Nichols said.

That's because prison companies like this one had a plan — a new business model to lock up illegal immigrants. And the plan became Arizona's immigration law.

Behind-The-Scenes Effort To Draft, Pass The Law

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