The Supreme Court prolongs the immigration mess

Dueling demonstrators with a Mexican and an American flag argue outside Arizona's Capitol, in Phoenix. The U.S. Supreme Court struck down much of Arizona's controversial immigration law this week. PATRICK BREEN / Arizona Republic
Dueling demonstrators with a Mexican and an American flag argue outside Arizona's Capitol, in Phoenix. The U.S. Supreme Court struck down much of Arizona's controversial immigration law this week. PATRICK BREEN / Arizona Republic
Posted: June 27, 2012

For those deciding whether to illegally immigrate to the United States, the Supreme Court has just lowered the risks and increased the potential benefits.

The court's ruling on Arizona's immigration law this week offered broad support for the Obama administration's policy of limited enforcement of federal immigration laws. It cited with approval the administration's 2011 memo announcing a policy of prosecutorial discretion, basically limiting immigration enforcement to criminals and national-security threats, noting that "a primary feature of the removal system is the broad discretion exercised by immigration officials." Such discretion also underlies the administration's announcement last week that it would authorize work permits for many illegal immigrants who entered the United States before the age of 16.

The high court acknowledged studies finding that 6 percent to 9 percent of Arizona's population is there illegally. One study cited by the court found that this segment of the state's population was responsible for 21.8 percent of its felonies. The court noted that problems related to illegal immigration in the state must not be underestimated.

But none of that prevented the court from striking down Arizona's best effort to address those problems. The message to other states: No matter how bad illegal immigration gets, you won't be allowed to do much about it.

The court did preserve a narrow opening for state action to restrict illegal immigration. As determined last year in Chamber of Commerce v. Whiting, states can revoke the business licenses of employers who hire illegal immigrants without checking their documentation using the E-Verify system. Hazleton, Pa., made similar use of licensing powers in its anti-illegal immigration ordinances.

The high court also upheld Arizona's requirement that police check the immigration status of those they stop or arrest if there is a reasonable suspicion that they're in the country illegally. The federal government had not attacked that provision as authorizing racial profiling because the same argument could be used against federal immigration laws. In fact, such immigration status checks are already standard operating procedure in many jurisdictions throughout the United States. Arizona lawmakers made it a legal requirement because certain "sanctuary" cities were telling their police not to check immigration status.

Overall, the court's ruling prolongs the current U.S. policy of keeping numerical immigration limits on the books but declining to enforce them. Moreover, it prohibits most state enforcement of those limits. If Congress repealed all our immigration laws and welcomed everyone who would like to enter the country, that would at least be intellectually coherent. The current policy makes no sense.

By rewarding and protecting illegal immigrants, we are punishing the millions awaiting their chance to immigrate legally. With so little risk that immigration law will be enforced, those who immigrate illegally get the last laugh.

Jan C. Ting is a professor of law at Temple University's Beasley School of Law. He can be reached at janting@temple.edu.

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