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Supreme Court immigration ruling: A win for Arizona, a call to action for Congress

The Supreme Court handed Arizona a hard fought victory in upholding the most contentious part of its immigration law. All other portions might be found constitutional, it seems, if Congress would state so explicitly in federal law. The decision should serve as a clarion call to Congress.

By Dan Stein / June 26, 2012

Arizona Gov. Jan Brewer reacts to the Supreme Court decision on the Arizona immigration law SB 1070 June 25 in Phoenix.Op-ed contributor Dan Stein says 'It is now up to Congress to reassert its intent that state and local governments act in partnership with the federal government in enforcing US immigration laws.'

Ross D. Franklin/AP

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The Supreme Court Monday handed Arizona a hard-fought victory in upholding the most contentious part of the Arizona immigration law, section 2(b) of SB 1070. That section requires state and local enforcement officials to verify with federal authorities the immigration status of people they lawfully stop when they suspect they are in the country illegally.

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This authority, the court held, is both authorized by federal law and a basic component of a state’s inherent enforcement function. Despite the determined opposition of the Obama administration and its allies, states can and will be full partners in assisting in enforcing our national immigration laws.

The Federation for American Immigration Reform (FAIR) will be working hard in states all across America to try to build on this and earlier legal successes that help carve out a state role in solving America’s immigration crisis.

Yes, the court struck down three of the other key provisions of the Arizona law: penalizing aliens in the country illegally seeking unauthorized employment, allowing police to arrest (without a warrant) individuals suspected of a crime that might lead to deportation, and making it a crime for those in Arizona not to carry immigration papers. But Justice Anthony Kennedy’s majority opinion overturned these provisions on narrow legal grounds, arguing that they allowed a state to preempt what Congress has outlined as the role of the federal government to enforce immigration law.

But in that sense, Justice Kennedy’s majority opinion also makes it clear that the court respects Congress’s wide-ranging and exclusive authority to authorize states to assist in a variety of areas of immigration law enforcement.

The court’s opinion thus suggests that these other portions of the Arizona law might be found legal and constitutional, it seems, if Congress would state so explicitly in federal law. In each case where the court struck down a portion of the Arizona law, the court could not find explicit evidence of congressional intent to allow a state like Arizona to enact such a law.

The decision should serve as a clarion call to Congress to step forward and lead: Congress can now – and must – step up and authorize states to act in these areas to cooperatively enforce federal immigration law within their borders.

Of course, for anyone who makes the effort to review numerous immigration laws enacted over many years, it is clear that Congress has already given the green light to these kinds of laws. But the five justices joining the majority opinion apparently could not locate the various sections of the Immigration and Nationality Act where Congress sought to encourage this sort of state-federal cooperation.

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