The Supreme Court ruled on June 25 that the authority to enforce immigration laws rests squarely with the federal government, limiting the role that states may play in crafting state-level answers to immigration enforcement. Immigration law experts see this as a serious blow to the “attrition by enforcement” strategy that has been pursued by several states, including Arizona, Georgia, Alabama, Indiana, South Carolina, and Utah.
By a 5-3 margin (Justice Kagan had recused herself), the Court struck down three of the four provisions of Arizona’s SB 1070 that were challenged by the Obama administration as preempted under federal law. While the Court agreed that Arizona’s attempt to limit immigration by creating new laws and new penalties to punish undocumented immigrants was preempted, it found that a provision requiring local police to investigate the legal status of suspected undocumented immigrants was not preempted on its face. However, according to analysts at the American Immigration Council, the court read this provision very narrowly, leaving the door open to future lawsuits based on racial profiling and other legal violations.
What will the decision mean? It is mostly positive for the American Nursery & Landscape Association and other advocates for a more thoughtful overhaul and modernization of America’s immigration system, in that it refocuses attention on Congress to take action. When that will happen is unclear, with the 2012 election taking away the appetite for hard work that is bipartisan.
On a more cautious note, the risk of local law enforcement engaging in profiling based on skin tone and language appears real. And, in states like Georgia, while employer advocates were mostly focused on the impact of mandating E-Verify, it turned out that such fears swept through immigrant communities and caused some to avoid, or leave, the state. Farm worker shortages and crop losses resulted – even before the E-Verify provisions were scheduled to take effect. One other possible negative result of the decision is that proactive efforts by some states to innovate by, for example, establishing their own guest worker programs are pretty clearly preempted.
To read the complete decision, click here