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Carl Kanowsky: It might be flawed, but it still works

Posted: June 29, 2012 2:00 a.m.
Updated: June 29, 2012 2:00 a.m.

The Supreme Court has given blog writers two gifts this week, with their decisions on health care and immigration law. We’ll discuss immigration this week, health care next week.
So, based on the recent decision on Arizona’s state immigration law, can we say that the Supreme Court is for or against illegal immigrants?   
That is the danger with these types of emotionally charged cases. Proponents of each side vilify the other. They are characterized as being either soft on crime or racists. The motivation for these types of laws often is based more on seeking a political advantage than on resolving important policy questions.
Thus, by the time this type of dispute reaches the Supreme Court, the arguments are that one side is either: 1.) seeking to open the borders to all types of dead beats and criminals; or 2.) it is all racially motivated.  
These positions are put to the court. The dilemma for the justices is to either make a policy decision or to ignore the background noise and decide the case on the law, not on the wisdom of the law.
Thankfully, the court issued a decision that was not determined on whether illegal immigrants from Central or South America pose an undue danger to the rest of the populace.
Instead, the majority ruled based on two concepts: supremacy and preemption. The court acknowledged that there’s a problem but it did not offer to solve it or to say that one side is better than another.
Rather, the court first pointed out that the U.S. Constitution declares: “The Supremacy Clause provides a clear rule that federal law ‘shall be the supreme Law of the Land; and the judges in every state shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’ Art. VI, cl. 2. Under this principle, Congress has the power to preempt state law.”
In other words, if the federal government decides to issue rules or laws in a particular area, those laws will supersede anything the states might enact. The court then did an exhaustive examination of whether the federal government has, by its actions, either explicitly or implicitly, sought to preempt the law in the area of immigration. The answer was easy to determine.
“The federal power to determine immigration policy is well settled.  Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws . . . Unlawful entry and unlawful reentry into the country are federal offenses.  §§1325, 1326.  Once here, aliens are required to register with the Federal Government and to carry proof of status on their person.  See §§1301–1306. Failure to do so is a federal misdemeanor.  §§1304(e), 1306(a).  Federal law also authorizes States to deny noncitizens a range of public benefits, §1622; and it imposes sanctions on employers who hire unauthorized workers, §1324a.”
The Court then analyzed the various portions of the Arizona law to see if they intruded into areas that the Federal Government has clearly stated were its sole province.
On three sections, the justices ruled that Arizona had impermissibly intruded into land occupied exclusively by the feds.  
These sections, which 1) made it a misdemeanor for an illegal alien to seek work; 2) gave state police authority to arrest aliens if they committed an offense that could get that person deported, and 3) made it a misdemeanor for aliens not to carry registration cards, the court ruled conflicted or attempted to usurp federal law.  
As such, they were not allowed to stand.
On the fourth section of the Arizona law considered, the majority ruled that if someone was stopped for some reason not having to do with their immigrant status, the state could require its officers to “make efforts to verify the person’s immigration status with the federal government.”  
The court found that this ruling did not try to impose a state policy in an area already taken by the federal government. Therefore, this provision was allowed to survive for now, “absent some showing that it has other consequences that are adverse to federal law and its objectives.”
The point is that the Supreme Court recognized that its role is not setting policy. Rather, it is to examine laws or actions to see if they comport with the U.S. Constitution and federal law. This is a radical departure from courts in many other countries and one reason why our system of justice (as flawed as it often is) has survived for so long.
Carl Kanowsky of Kanowsky & Associates is an attorney in the Santa Clarita Valley. He may be reached by e-mail at or online through his law firm at Kanowsky’s column represents his own views, and not necessarily those of The Signal. Nothing contained herein shall be or is intended to be construed as providing legal advice.


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