Something more than tear gas residue and smoke from burning Waymos hung over the Los Angeles streets hit by anti-ICE protests over the past week: a landmark Supreme Court decision from just over a decade ago.
The Trump administration has argued that sanctuary jurisdictions like California, and L.A. specifically, are getting in the way of immigration enforcement, and that states and cities should be helping federal agents carrying out their work.
That argument is, perhaps ironically, based on a Supreme Court precedent affirmed during the Obama administration. In 2012, the high court ruled in Arizona v. United States that it was the federal government’s supreme responsibility to enforce immigration laws, and it superceded state and local law enforcement.
“It has been interpreted, I have to say, remarkably consistently, by circuits from the Fifth Circuit to the Ninth Circuit, with some variations, to strike down or affirm district court decisions striking down state laws that have been viewed as attempts by the states to enforce immigration law,” Emma Winger, deputy legal director at the American Immigration Council, told Newsweek. “Arizona‘s holdings are, in many ways, very clear.”
What Did Arizona v United States Do?
The Supreme Court of 2012 heard arguments around Arizona’s attempt to enact a controversial new law – SB 1070, or better known as the “show your papers” law – which would have given state and local police the power to do immigration enforcement independent of the federal government.
Arizona’s Republican lawmakers had pushed for the law a high number of illegal immigrants ended up in the state. The legislation was challenged, and the case made its way to the Supreme Court.
Justices struck down three provisions of the law: one that had allowed Arizona law enforcement to arrest immigrants without a warrant, another that made it a state crime to not carry federal registration documents, and a third made it a crime for undocumented immigrants to seek work. Police were still allowed to ask to see documentation if they suspected an individual was in the country illegally.
The decision cemented immigration enforcement powers as the sole purview of the federal government. It has been used to block other states’ moves in recent years to take on immigration enforcement, such as in Texas and Oklahoma.
“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 the majority opinion, which has been used to strike down multiple attempts by states to go their own way either by enforcing — or choosing not to enforce — federal immigration law.
Does Arizona Give Trump Free Reign?
As Immigration and Customs Enforcement (ICE) agents came up against protestors in Los Angeles over the past week, the federal government’s superceding right to enforce immigration laws came back into focus.
The White House, including Deputy Chief of Staff Stephen Miller, have said that the Department of Homeland Security (DHS) and ICE are acting on the president’s orders, as well as the will of the American people who elected Trump in November.
“America voted for mass deportations. Violent insurrectionists, and the politicians who enable them, are trying to overthrow the results of the election,” Miller posted on X on Wednesday.
Whether the Trump administration is embracing the “spirit” of the Arizona ruling is up for debate.
Masked, ununiformed agents sweeping away immigrants without legal status but no other criminal record, or ICE detainees then being speedily deported without a day in court, are not necessarily methods Kennedy and the other justices in 2012 called for.
“Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all,” Kennedy wrote. “Discretion in the enforcement of immigration law embraces immediate human concerns.
“Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime,” the justice wrote. “The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service.”
Immigration advocates, and many Democrats, have argued the White House is going after migrants such as those, rather than the criminals Trump said were the original focus of deportations.
Winger said that the Arizona decision could be connected to the show of force from the administration, but that “it’s not really about that”.
“Arizona is really, primarily, about the limits on states in enforcing their own laws,” she told Newsweek. “But it is true that the Trump administration has used Arizona and, to a greater degree, the supremacy clause which is the foundation of the Arizona decision, to argue that states and localities that do not participate in federal immigration enforcement are violating the supremacy clause.”
Should Sanctuary Jurisdictions Work With ICE?
Kennedy’s 2012 majority opinion could also be linked to the clash between the current White House and Democratic states, counties, and cities which either proclaim to be, or have been branded as, sanctuary jurisdictions.
On Thursday, Republicans in Congress called Democratic Governors JB Pritzker of Illinois, Kathy Hochul of New York and Tim Walz of Minnesota to testify about their states’ policies that prevent local law enforcement from working with federal agents on immigration enforcement.
“Congress must confront this absurd reality: state and local officials are actively undermining federal immigration enforcement – even when it’s aimed at making their own communities safer,” House Oversight Committee Chair Republican Rep. James Comer said in his opening remarks. “It’s time to determine what legislative action is needed to stop this subversion and restore the rule of law.”
The three governors, like Democratic mayors before them, repeatedly argued during the hearing that state and local police do cooperate with ICE when it comes to known immigrant criminals, but that it was not their responsibility to track illegal immigrants and make sure they were detained or deported.
“You’re putting a federal problem in our laps,” Hochul said during the hearing, with Walz adding: “It’s the federal government’s job to secure the border.”
ICE has still been enforcing immigration laws in sanctuary jurisdictions, with large operations in Chicago, Boston and Los Angeles. Winger told Newsweek that while local officials cannot stop federal immigration enforcement in their jurisdictions, they are also protected from being forced to participate by the 10th Amendment, which ensures that any powers not specifically given to the federal government by the Constitution are reserved for the states.
“Within those bounds it should be possible for the federal government to do its job,” she said. “What’s led to the conflict in Los Angeles is not really federal government enforcing immigration law, it’s the manner in which they are doing it.”
For the Trump administration, that may be something to consider while exercising what it claims is a wide mandate on mass deportations. While the policy still sees broad support in polls, the methods by which ICE is operating are less popular.
“The National Government has significant power to regulate immigration,” Kennedy wrote in the 2012 Arizona opinion. “With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse.”
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