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Supremes To Take Arizona Immigration Case

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And it’s far from clear to what’s going to happen. Thomas, ordinarily the staunchest states’ “rights” justice, is different in preemption.   And elite Republicans don’t have monolithic views on immigration enforcement (in particular, you have to think that Kennedy might see auto executives getting detained in Alabama and think it might be time to put the brakes on.)   But the Supreme Court always likes a chance to overrule the 9th Circuit and while Noonan — one of the 9CA justices who voted to strike the law — is a conservative his views on federalism are comparable to Breyer’s, so it doesn’t really tell us anything.

Another possibility I didn’t discuss in the Guardian piece is that the Supreme Court could follow the 9CA dissenter, who voted to uphold some but not all of the law.   Carlos Bea would have struck down only the provision that would have made it a state crime not to carry papers and the clause that makes it illegal for an undocumented immigrant to seek work, while upholding the rest (including the crucial “show us your papers” arbitrary search provision.)     I could see that appealing to Roberts in particular.   But it’s hard to read the tea leaves on this one, particularly for such a potentially important case.

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  • rea

    Carlos Bea would have struck down only the provision that would have made it a state crime not to carry papers and the clause that makes it illegal for an undocumented immigrant to seek work, while upholding the rest (including the crucial “show us your papers” arbitrary search provision.)

    If it’s not a crime to not have your papers, what is the point of demanding that the suspect show her or his papers?

    • Scott Lemieux

      It would still be a federal crime; Bea’s argument, if I understand correctly, is that it can’t also be a state crime.

      • rea

        Is it really a federal crime to not produce your immigration papaers in response to the demand of a local police officer?

        • c u n d gulag

          We’ll answer that question after you show us your papers!

          Until then, put your hands behind your back, spread you legs, and make like you’re kissing the hood of the police car.

          NOW!

        • matth

          See 8 U.S.C. 1304(e) (“Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d) of this section.”) Failure to do so is a misdemeanor punishable by a fine or 30 days in prison.

          I think AZ made it a state crime to violate the federal requirement to carry one’s papers (rather than making failure to show one’s papers when asked a state crime).

          • Spud

            I think AZ made it a state crime to violate the federal requirement to carry one’s papers (rather than making failure to show one’s papers when asked a state crime).

            The state’s law enforcement officials aren’t given the duty to enforce the federal requirement, it is an overreach. It amounts to a state choosing to act for the Federal government on its own accord.

            There is no fundamental difference between making the failure to show papers to a state law enforcement officer a state crime and claiming to be enforcing the federal law by adding its own spin. The federal law can only be enforced through the request to see one’s papers [implicitly by personnel authorized to make the request]. You are making a phony distinction here.

            • Scott Lemieux

              I think this is a silly distinction, but whether a majority of the Supreme Court will is another question.

  • Hogan

    Kennedy might see auto executives getting detained in Alabama and think it might be time to put the brakes on.

    I see what you did there.

  • wengler

    I suppose a lot of this comes down to whether the Supreme Court can be persuaded that the 14th amendment wasn’t enacted to take away black votes in Florida.

    Corporations generally like a vulnerable and exploited labor pool, however. I could see this as a 6-3 to strike down parts of the law.

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