Supreme court paves way for increased illegal immigration

Letter date: 
Thursday, June 28, 2012
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Letter author: 
Jan Ting
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On Monday, the Supreme Court ruled against key parts of an Arizona law intended to deter illegal immigration in the state. As you can imagine, this ruling has wide-ranging effects for the ability of all states to fight against the tidal wave of illegal immigration locally.

The Supreme Court’s ruling means more illegal immigration tomorrow. For those trying to decide where or not to enter our country illegally, the risks and costs have just gone down, and the potential benefits have just increased. It would be more intellectually coherent for Congress to repeal our current immigration laws and just welcome all who would like to come without numerical limitation. The current policy of maintaining numerical limits on the books, but not enforcing those limits, and now prohibiting most state enforcement of those limits, simply makes no sense.

This policy is a slap in the face for the millions of qualified immigrants now waiting outside the U.S. for their chance to immigrate legally. They look like fools, and their children will age out and not be allowed to immigrate with them if they ever get visas.

The court gave broad support to the Obama administration’s policy of prosecutorial discretion, or limited enforcement of U.S. immigration law. The court cited with approval the administration’s 2011 memo announcing a policy of prosecutorial discretion in immigration enforcement, basically limited to criminals and national security threats. The court noted, “a primary feature of the removal system is the broad discretion exercised by immigration officials.” Prosecutorial discretion is what underlies the recent administration decision to give work authorization for illegal immigrants who entered the U.S. before age 16.

Most of Arizona’s efforts to deal with illegal immigration were struck down. Studies estimate that the unauthorized portion of Arizona's population currently sits somewhere between 6 percent and 9 percent. One study cited by the court found that the 8.9 percent unauthorized portion of Arizona’s population was responsible for 21.8 percent of Arizona’s felony crimes. The message to other states: No matter how bad it gets for you, you won’t be allowed to do what Arizona tried.

The court preserved a narrow window for state action to restrict illegal immigration. As determined last year in Whiting v. Chamber of Commerce, states can use licensing power to revoke the business licenses of employers who hire illegal immigrants without checking work authorization using the automated E-Verify procedure. This licensing power is also what the city of Hazleton, Pennsylvania, has tried to use in its anti-illegal immigration ordinances.

Secondly, the court permitted to stand the portion of the Arizona statute requiring a determination of immigration status anytime a police officer makes a legal stop and has a reasonable suspicion that the stopped individual may be illegal. That provision also specified that anyone actually arrested should have an immigration status determination before release. The high court approved that provision only on condition that it not result in practice in prolonged detention. The racial profiling argument is a loser; If it government had made an attempt to argue this, it could have be used to strike federal immigration law provisions as well.

This procedure for a mandatory immigration status check upon reasonable suspicion after a legal stop is already standard operating procedure in many jurisdictions throughout the United States. Arizona put it in SB1070 because certain Arizona “sanctuary city” jurisdictions were instructing their police not to do status checks despite reasonable suspicion.

Chief Justice Roberts's position in support of the majority opinion was surprising and curious. Justice Kennedy maintained his usual position as the key swing vote assigned to write the majority opinion, but if the Chief Justice had decided to vote along with his fellow Republican appointees, it would not have made a much of a difference. A 4-4 split, because Justice Kagen recused herself, would have left the lower court opinion in effect, striking all four of the challenged portions of SB1070.

Chief justices feel responsible for the image of the court as a whole, and hate to have the court viewed as ineffective and its opinions without meaning. I suspect the Chief Justice offered to vote with the majority, creating a decisive 5-3 majority vote, provided the majority agreed to sustain at least one of the contested provisions of SB1070 requiring an immigration status check after a legal stop if the police officer has a reasonable suspicion that the individual is without legal status. And, of course, that is what the majority proceeded to do.

Jan Ting is a Professor of Law at Temple University’s Beasley School of Law and a former Assistant Commissioner for Refugees, Asylum and Parole, Immigration and Naturalization Service, U.S. Department of Justice. Jan can be reached at