Update: Supreme Court Strikes Down Some Key Provisions of Arizona’s Immigration Law

This is a short update to previous Slaw posts on Arizona’s 2010 controversial new anti-immigration measures. After examining whether the law unconstitutionally invaded the federal government’s exclusive prerogative to set immigration policy, on Monday June 25, 2012, the U.S. Supreme Court struck down key provisions of Arizona’s immigration law as follows:

• Requiring people to carry their identification papers at all times in public places
• Making a crime of failure to apply for valid immigration papers
• Allowing police officers to arrest anyone they believe has committed a crime that would make them removable from the country
• Making it a crime for illegal immigrants to apply for or perform any work

However, the provisions requiring police officers to determine the immigration status of people they stop for a violation of any law if the officers think the persons are in the country illegally or, police to check all arrestees’ immigration status with the federal government before they are released, have been upheld.

Justice Anthony Kennedy said the mandatory nature of police checks did not interfere with the federal immigration scheme, and found unpersuasive the Obama administration’s argument that this portion of the law must be preempted at this stage. It was improper to block that provision before state courts had an opportunity to review it, and without some showing that its enforcement conflicted with federal immigration law. Kennedy also left open the possibility for future constitutional or other challenges to the law once it goes into effect.

Justice Anthony Kennedy wrote the majority opinion, joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. Justices Antonin Scalia, Thomas and Alito dissented. Justice Elena Kagan, who served as President Barack Obama’s solicitor general, had recused herself from the Arizona case. The decision can be consulted here.