U.S. Supreme Court Strikes Down Most of Arizona Immigration Law; AFLC Weighs In

Yesterday, in a 5-3 decision (Justice Kagan recused herself), the U.S. Supreme Court struck down most of Arizona’s new immigration law, but upheld one of the more controversial provisions. In 2010, Arizona enacted the Support Our Law Enforcement and Safe Neighborhoods Act (S.B. 1070) to address the serious illegal immigration crisis. Immediately thereafter, the law was challenged by the Obama administration’s Department of Justice. A federal judge in Arizona enjoined several provisions of S.B. 1070, and that ruling was upheld by the U.S. Court of Appeals for the Ninth Circuit. The State of Arizona then sought review in the United States Supreme Court.  American Freedom Law Center (AFLC) Co-Founders and Senior Counsel David Yerushalmi and Robert Muise filed a “friend of the court” brief in the high court in support of the law.

While the section of the Arizona law permitting law enforcement to check on the immigration status of a suspect properly detained for violation of a crime (§2(b)) was upheld, the other major provisions of the law authorizing Arizona law enforcement to protect its citizenry from the ill-effects of illegal immigrants (§§ 3, 5(c), and 6) were struck down.

“This ruling is a defeat for federalism,” Muise stated. “As Justice Scalia noted in his dissent, the Court’s ruling ‘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.’ Additionally, as we forcefully argued in our brief to the Court, the Obama administration’s policy of non-enforcement of our Nation’s immigration laws threatens not only the security of Arizona and its citizens, but our national security as well.”

AFLC’s “friend of the court” brief, which highlighted the national security threat posed by the Obama administration’s failure to secure our borders, was filed in part on behalf of the Center for Security Policy (CSP), a Washington, D.C.-based, nonprofit national security policy think tank. As detailed in the brief, since 9/11, CSP has focused much of its resources on the underlying enemy threat doctrine known to jihadists as sharia. In turn, this work has lead CSP to investigate the narco-terrorism connection between Middle East arms dealers, Hezbollah, and Central American drug traffickers such as Fuerzas Armadas Revolucionarias de Colombia (FARC).

As revealed by the federal government’s own investigations, there is a working conspiracy between the U.S. State Department-designated Hezbollah jihadist group and militaristic drug traffickers who routinely use the Mexican-American border to transport drugs, money, arms, and personnel between the two countries. This jihad presence on our southern border turns an out-of-control immigration problem into an existential security threat beyond measure for individual border States, such as Arizona, and the Nation at large. As noted in the brief, from a national security policy perspective, it makes no sense for the federal government to prevent Arizona from providing a first layer of defense for itself and the Nation.

As Yerushalmi and Muise argued in the brief:

“Pursuant to its police powers, the Arizona Legislature duly enacted the provisions of S.B. 1070 at issue here. However, these provisions have now been rendered unenforceable by the blunt force of the district court’s ruling and the divided opinion of the Ninth Circuit, which affirmed. The analysis of the lower courts, when juxtaposed against the actual provisions of S.B. 1070 and the federal legislation purportedly preempting the state law, reveals a legal proposition that finds no refuge in the Constitution or in any Supreme Court rulings. This new statement of federal preemption envisions a federalism where an Executive Branch agency’s decision not to enforce federal law trumps a State’s exercise of its police powers even when the state law is patently in accord with and compatible to the federal legislation purportedly at the heart of the preemption. The lower courts erred by stretching the existing preemption doctrine beyond any reasonable constitutional parameters.”

Yerushalmi commented: “As Justice Scalia’s scathing and quite rational dissent argues, the Obama administration refuses to enforce the existing laws prohibiting illegal immigration. And when a border State on the front lines of this battle over sovereignty and national security like Arizona decides that it must take action to protect its citizens from a clear and present threat to their physical safety and security, the Court turned its back on the people and effectively rendered the Tenth Amendment a nullity.”