High Court Splits on Arizona Law — Is Georgia Next?


By Ben Mathis and Kelly Morrison
In a decision that left both sides claiming victory, the Supreme Court struck down several portions of immigration legislation by the State of Arizona, but also upheld a key part of the law that may further the trend of State legislation attempting to restrict undocumented individuals.
The Supreme Court, splitting 5-3, struck three out of four portions of the Arizona immigration reform bill, SB 1070.  The Court held that attempts by the State to impose new criminal sanctions on unauthorized individuals, such as the imposition of a criminal misdemeanor when such an individual applied for a job without citizenship or a visa, were unconstitutional.  The Court found that the majority of the statute improperly usurped the role of the federal government in regulating immigration, and agreed that Arizona’s attempt to limit immigration by creating new criminal penalties to deter undocumented immigrants was preempted.
Justice Anthony Kennedy authored the majority opinion and emphasized that the authority to enforce immigration laws rests squarely with the federal government.  He was joined by Chief Justice Roberts and the Justices Ginsburg, Breyer and Sotomayor.  Justice Kagan had a conflict and did not participate in the decision.  Justices Thomas, Scalia and Alito dissented.
Still, in perhaps the most significant part of the decision, the Court found that a provision requiring local police to investigate the legal status of suspected undocumented immigrants was not preempted on its face.  This provision has been the source of much of the controversy over the Arizona law as opponents claimed it gave local law enforcement the opportunity to harass suspected unauthorized individuals with little justification.
On this issue, the proponents of the law claimed victory as it opens the door for States to take a greater role in determining the legal status of individuals who have interaction with law enforcement.  The Court was unanimous on this point and held that a State may verify the legal status of people who come in contact with law enforcement.  The Court did read this provision very narrowly, however, leaving open the door to future lawsuits based on racial profiling and other legal violations if bias is shown in enforcing the provision.  Interestingly, the decision is silent on what a local government can do with individuals it finds are undocumented and apparently are residing in the United States illegally.
As a practical matter, this ruling does limit States’ power to enact do-it-yourself, comprehensive immigration reform.  In that regard, the decision will no doubt lead to further legal challenges to States like Georgia and Alabama that have enacted laws similar to Arizona.
As is often typical of cases of this type, there is support in the High Court’s Arizona decision for the position of both sides.  Foes of the Georgia law will doubtless target attempts to restrict employment of undocumented workers.  On the other hand, proponents of State regulation may try to broaden the role of local government to verify eligibility for retirement, health and disability benefits.  The Supreme Court’s decision arguably leaves open such avenues for States to continue enacting measures designed to deter illegal immigration.
Certainly, the controversial issue of immigration reform will continue as a source of litigation.  States desiring immigration reform are likely to use this decision as a roadmap to tailor legislation that they believe will survive legal scrutiny.  No doubt, opponents will continue to challenge such efforts in the courts unless the President and the Congress settle the matter through comprehensive reform legislation.
Click here to read the full opinion.
For more information, contact Ben Mathis at 770.818.1402 or[email protected] or Kelly Morrison at 770.818.1298 or[email protected].