Judging just by the headlines on the Supreme Court’s ruling on
Arizona’s SB 1070, the Wall Street Journal (“Supreme
Court Upholds Key Part of Arizona Law”) is spinning it as
something of a victory and the liberal Los Angeles Times
(“Supreme
Court Issues Split Decision on Arizona Immigration Law”) as
something of a defeat for the anti-immigrant camp.

My own quick and dirty take based on skimming the ruling is that
it is really more of a defeat than a victory.

The court upheld, 5-3, the so-called “your papers please”
provision that authorizes state police officers to inquire into the
immigration status of people stopped for some other crime if a
reasonable suspicion exists that they may be here illegally. But it
struck down provisions that made it a crime for immigrants — legal
and illegal — to fail to carry their registration papers and for
illegals to seek work. It also barred state authorities from
arresting any immigrant they believed had committed a deportable
offense.

This means that state authorities can stop, question and briefly
detain immigrants they believe are here illegally. But unless the
feds – who the court affirmed have the ultimate authority to write
immigration law — authorize the continued detention of these
folks, they would have to be released. State authorities, in other
words, can continue to harass immigrants, but not to do really
serious damage to them — unless, of course, they are Joe Arpaio
and don’t care about what no stinkin justices in black robes have
to say.

All of this makes constitutional sense. Given that the
constitution gives the feds – not states — the ultimate authority
to write immigration law, state laws that are consistent with
federal law can stand. When they are in conflict, they are
“pre-empted.” Federal law requires immigrants to carry their papers
(something that I was not even aware of in the decade or so that I
lived in this country on a green card because it was never
enforced). Hence, Arizona asking for immigrants to produce their
papers is not unconstitutional. However, federal law does not make
it a crime for immigrants to not carry their papers– and in making
it one, Arizona overreached.

But just because “your papers please” provision is not
pre-empted by federal law doesn’t mean that it is constitutional in
every respect. The court’s liberal justices joined by Justice
Kennedy left open the door to future legal challenges to that
provision, presumably on equal protection grounds. That’s because
the only people who are likely to raise “reasonable suspicion” of
being in the country illegally are not white-skinned folks speaking
“American” – but brown-skinned folks with an accent. (Full
disclosure: I am a naturalized citizen in the latter camp, although
I, mercifully, don’t live in Arizona and unless this law is
scrapped in toto would never consider moving there.) Hence, racial
profiling is built into the law and once its opponents have amassed
enough evidence of its discriminatory nature, the court virtually
invited them to come back and have the law thrown out.

This means that unless Congress fixes our broken immigration
system, the immigration wars will continue in the courts for a
while.

Here is Ilya Shaprio of Cato’s
legal analysis of the ruling.

Here is the
full ruling, complete with separate dissents by Justices
Scalia, Thomas and Alito.