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Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal. Telephone (310)274-8216; eli@elikantorlaw.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com

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Tuesday, June 26, 2012

Supreme Court Allows Immigration Checks

WALL STREET JOURNAL (Article by Jesse Bravin)The Supreme Court struck down much of Arizona's effort to crack down on illegal immigrants but left one key part intact in a ruling that gave both sides of the debate something to cheer.

In a 5-3 ruling, the court said Arizona in effect had tried to set up a parallel enforcement system that punished illegal immigrants more harshly and interfered with congressional authority over the nation's borders. The court rejected parts of the state law known as SB1070 that made it a crime for illegal immigrants to seek work and that authorized warrantless arrests of people suspected by state and local police of committing deportable offenses.

But the court upheld for now the law's directive that state and local police check the immigration status of people they stop when they suspect them of lacking authorization to be in the U.S. The justices observed that federal law already requires immigration officials to respond to status checks from local authorities.

The court left open the possibility that the surviving provision could be challenged depending on how it is applied. It acknowledged concerns that the provision could lead to abuses, such as prolonged detention of arrestees while their status was being checked.

"The government of the United States has broad, undoubted power over the subject of immigration and the status of aliens," Justice Anthony Kennedy wrote for a majority including Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. "Immigration policy can affect trade, investment, tourism and diplomatic relations for the entire nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of the laws," the court said.

While "the problems posed to the State by illegal immigration must not be underestimated," Justice Kennedy wrote that Congress had established a "careful framework" for immigration intended to balance interests involving employers, families and diplomatic relations as well as law enforcement.

The court's three most conservative members, Justices Antonin Scalia, Clarence Thomas and Samuel Alito, each filed separate dissents saying they would have upheld the entire Arizona law—or, in Justice Alito's case, all but one provision. None joined the dissent of the other, suggesting disagreement over the basis for upholding the state law.

The majority "deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign's territory people who have no right to be there," Justice Scalia wrote.

Justice Elena Kagan, who served as solicitor general during earlier stages of the litigation, was recused from the case.

With immigration likely to be a major issue in the November election, the survival of the status-check provision was a consolation prize for backers of the Arizona crackdown, giving them as well as the Obama administration a way to claim victory.

President Barack Obama said he was pleased that the court struck down the three provisions and said the decision "makes unmistakably clear…that Congress must act on comprehensive immigration reform." He called on Arizona not to enforce the surviving provision "in a manner that undermines the civil rights of Americans."

Arizona Gov. Jan Brewer, a Republican who signed the measure in 2010, called the ruling a "legal victory." Ms. Brewer said she recently issued a new order to train officers to enforce the law without racial profiling. "I am confident our officers are prepared to carry out this law responsibly and lawfully," she said in a statement.

The law's opponents also said they were pleased with the ruling.

"God answered our prayers. This is a big victory," said Magdalena Schwartz, the pastor of a Hispanic evangelical church in Mesa who opposed the law. Many families in her church are in the U.S. illegally. "My families are so happy, so relieved. They have peace. They can live their lives. They can stay in Arizona."

For undocumented immigrants, the high court's ruling could make it easier to look for a job in Arizona and reduce the risk they could be arrested by local police simply for lacking papers. However, if they were stopped for another reason, police in Arizona would be more likely to check their immigration status in cases where police in other states might not bother.

"This was a good decision on the part of the court and really helps the country dodge a pretty significant bullet,'' said Todd Landfried, executive director of Arizona Employers for Immigration Reform, which opposed the law.

Lower federal courts had blocked the four provisions from taking effect, agreeing with the Justice Department that they undermined federal authority over immigration.

The law is part of the broader national debate over immigration, which heated up last week when Mr. Obama and Republican rival Mitt Romney spoke before a group of Hispanic officials.

Mr. Obama touted his announcement the previous week that his administration will stop deporting many young illegal immigrants, while Mr. Romney used his speech to soften his tone on immigration and call for a long-term overhaul that would allow more newcomers to receive green cards. The candidates are both stepping up their appeals to the fast-growing bloc of Hispanic voters.

Mr. Romney in a statement Monday said the Supreme Court ruling "represents yet another broken promise by this president. I believe that each state has the duty—and the right—to secure our borders and preserve the rule of law, particularly when the federal government has failed to meet its responsibilities."

Democrats have accused the Arizona law's supporters of having an anti-immigrant agenda, while the law's mostly Republican backers say they want to secure the nation's borders.

Arizona's illegal-immigration measure, officially titled the Support Our Law Enforcement and Safe Neighborhoods Act, reflected outrage among tea-party conservatives over what they considered lax enforcement by federal immigration authorities. Yet Arizona voters sent a mixed message on the measure when its author, state Senate President Russell Pearce lost his seat in a November recall election to another Republican.

Similar measures have been introduced in other states, including Alabama, which recently drew unwelcome attention when executives from German and Japanese car makers that the state had pushed to bring there were arrested for failing to produce immigration papers.

Congress has been in a long stalemate over immigration, with proposals for a broad overhaul getting little traction. That has led Mr. Obama to use his executive powers to make some changes.

Following the Supreme Court arguments in April, the Obama administration announced illegal immigrants wouldn't be placed in deportation proceedings merely for a traffic violation, part of continuing efforts to devote resources to deporting foreigners who have committed serious crimes.

Then on June 15, Mr. Obama said many young illegal immigrants would be allowed to legally live and work in the U.S., sidestepping Congress and using what his administration called prosecutorial discretion.

Under the new rules, an estimated 800,000 young people brought to the U.S. as children could apply for work permits and enjoy a safe haven from deportation. Unlike with the Dream Act, a bill backed by Mr. Obama that has stalled in Congress, they wouldn't be eligible for citizenship.

The debate comes as Hispanics continue to grow as a share of the electorate, particularly in battleground states such as Nevada, Colorado and Florida. Mr. Obama won 67% of the Hispanic vote in 2008. Polls this year have shown the president with a similar lead, but Mr. Romney is making a strong effort to close the gap.

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