Arizona and the Supreme Court: Round One

The Arizona v. U.S. decision found that only one of the four provisions under consideration was not trumped by federal law. The “papers please” provision of the Arizona immigration law, Section 2(B), will be going into effect. That section requires state and local police officers to attempt to determine the immigration status of people they stop if the officers have “reasonable suspicion” that the person is unlawfully present in the U.S.


That surviving section is already facing at least one legal challenge that will now go forward. Karen Tumlin is working on such a case — Friendly House v. Whiting. As one of the lead attorneys, she said, “Whatever happens at the Supreme Court, this is just the first inning in a very long ballgame.”


Her challenge claims the Arizona immigration law violates the constitutional guarantees of equal protection under the law, due process, and protection against unreasonable searches and seizures. Today’s decision only dealt with the issue of preemption, whether Arizona was infringing on the federal government’s power to regulate immigration, and did not deal with the rights of individuals. Friendly House v. Whiting will challenge many of the remaining portions of the Arizona immigration law.


Arizona has two major immigration laws. The first is the Legal Arizona Workers Act (LAWA) which attempts to regulate unauthorized immigrants out of the workplace with very expensive restrictions on business. This law was found constitutional in last year’s Chamber of Commerce v. Whiting decision. The second Arizona immigration law, the one the court has occupied itself with today, marshals the power of the state government to force unauthorized immigrants out of Arizona altogether.


In these two decisions, SCOTUS has allowed a very great number of intrusive business regulations to force unauthorized immigrants out of the state but has put some limits on what the state can do outside of the workplace.


As a policy matter, this decision changes very little in the short term. Arizona’s immigration laws, including LAWA, have already driven about 200,000 people from the state. As a result the property price decline in Phoenix was the second worse of any metropolitan area in the U.S., the unemployment rate has been consistently higher than its neighbors, business investment has left Arizona, and certain industries, like construction and agriculture, have suffered.


As my colleague Ilya Shapiro has noted, this decision means that neither states nor executive discretion will resolve this immigration conundrum. The federal government – both Congress and the President – will have to work out a solution.