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 whether 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 the government had made an attempt to argue this, it could have be used to strike federal immigration law provisions as well.
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