OC Political

A right-of-center blog covering local, statewide, and national politics

Supreme Court’s Weird Split on Arizona v. United States

Posted by Chris Nguyen on June 25, 2012

By now, you’ve likely heard about the U.S. Supreme Court’s ruling in Arizona v. United States which decided the constitutionality of Arizona’s S.B. 1070.  Legal experts often say that judicial ideology is hard to measure, but for the sake of brevity, I’ll use the layman’s categorization of which justices are conservatives and liberals.

Liberal justice Elena Kagan recused herself since she was Solicitor General at the time the Obama Administration decided to challenge S.B. 1070.

A lot of news coverage has left out how the justices voted, so here’s my quickie guide (my far-too-short analysis of the practical implications follows the guide):

The Court voted unanimously to uphold Section 2(B):

For any lawful contact made by a law enforcement official or agency of this state or a county, city, town or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person.  The person’s immigration status shall be verified with the federal government pursuant to 8 United States Code Section 1373(c).

In other words, law enforcement officers may determine the immigration status of any person “where reasonable suspicion exists” after the officers make a stop, detention, or arrest.


In a 6-2 decision, the Court struck down Section 3, which is a page and a half long (way too long to reproduce here, but accessible here).  In essence, that section made it misdemeanor trespassing to be illegally in Arizona.

In this portion, conservatives Samuel Alito and John Roberts joined with conservative swing voter Anthony Kennedy and liberals Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor to strike down that portion of the S.B. 1070 as unconstitutional.  Conservatives Clarence Thomas and Antonin Scalia voted to uphold that portion of S.B. 1070.

In a 5-3 decision, the Court struck down Section 5(C):

It is unlawful for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state.

In other words, that section made it a misdemeanor to work or seek work in the United States without a green card, a visa, or U.S. citizenship.

Conservative Chief Justice Roberts joined with conservative swing voter Kennedy and liberals Ginsburg, Breyer, and Sotomayor to strike down Section 5(C) of S.B. 1070 as unconstitutional.  Conservatives Alito, Thomas, and Scalia voted to uphold that section of S.B. 1070.

In a 5-3 decision, the Court struck down Section 6, which is nearly 4 pages long (way, way too long to reproduce here, but can be accessed here).  In essence, that section allows a law enforcement officer to arrest someone without a warrant for “any public offense” that makes the person deportable.

As with Section 5(C), conservative Chief Justice Roberts joined with conservative swing voter Kennedy and liberals Ginsburg, Breyer, and Sotomayor to strike down Section 6 of S.B. 1070 as unconstitutional.  Conservatives Alito, Thomas, and Scalia voted to uphold that section of S.B. 1070.

Practical Implications

Sections 2(B) was the most potent clause of S.B. 1070, followed by Section 6 while Sections 3 and 5(C) were less significant.  Sections 3 and 5(C) dealt with creating specific misdemeanors, but Sections 2(B) and 6 gave Arizona police and sheriff’s vast powers of enforcement.  Section 6 allows law enforcement to arrest for any deportable offense even without a judicial order.  Section 2(B) allows law enforcement to demand proof of legal status from anyone they stop (if they’ve stopped them for another reason).

The Court’s ruling still allows Arizona law enforcement to demand proof of legal status, yet doesn’t allow them to enforce their two misdemeanors or make an arrest for a deportable offense without a judicial order.

It was weird enough that Roberts joined Kennedy and the liberals on the entire ruling and Alito joined them on 1 of the 3 non-unanimous portions of the decision.  However, it’s truly weird that the most potent portion of S.B. 1070 was upheld while the other portions were struck down.  While this may make legal sense, it has really odd practical implications.

One Response to “Supreme Court’s Weird Split on Arizona v. United States”

  1. Greg Diamond said

    Why is this split weird? They’ve reserved the right to revisit the §2(b) issue once Arizona has had enough experience with enforcing it that they can tell whether Arizona is acting responsibly or “going Arpaio” with it.

    §§ 3 and 5(C) turn federal civil offenses into criminal ones. That’s a huge change. (You left out that seeking work without permit was among the criminalized acts.

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