White Plains CitizeNetReporter - Review of the Supreme Court Arizona Immigration Law Decision

WPCNR WHITE PLAINS LAW JOURNAL. By James Maisano, Esq. June 26, 2012: I have been focusing on a few important U.S. Supreme Court decisions that were being closely watched by the legal and political worlds. Over the past week, the Supreme Court has released three of these decisions: Arizona v. U.S. The Court confirmed that “the Government of the United States has broad, undoubted power over the subject of immigration and the regulation of aliens . . . the federal power to determine immigration policy is well settled.” However, the Court did open the door for states to assist the federal government in the enforcement of immigration laws. A unanimous Court (8-0 with Justice Kagan not taking part) upheld Section 2(B) of the Arizona law requiring police officers to check the immigration status of anyone arrested or detained and allowing them to stop and arrest a person if the officers have "reasonable suspicion" that the person is an illegal immigrant (known as "show me your papers"). The Court stated there was no showing that this section conflicted with federal immigration law. The public debate over Section 2(B) being used for racial profiling in violation of the Equal Protection Clause was not addressed by the Court here, and this issue appears to be reserved for future review, although the Court did state and accept that the Arizona law specifically bars its use in racial profiling. On split decisions, the Court rejected other sections of the Arizona law:

making it a crime for unauthorized immigrants to fail to carry registration papers and other government identification (6-2).
prohibiting those not authorized for employment in the US to seek or perform work (5-3).
authorizing police to arrest illegal immigrants without a warrant where "probable cause" exists that they committed any public offense (5-3).

There was some interesting debate around the internet and media among Supreme Court observers on the rather strong and somewhat politically charged dissent of Justice Scalia, who argued that the entire law should be upheld, and it makes for some interesting reading. Here is the link to Justice Kennedy's majority decision and dissents: http://www.supremecourt.gov/opinions/11pdf/11-182b5e1.pdf

FCC v. Fox: A unanimous Supreme Court (8-0 with Justice Sotomayor not taking part) sided with Fox over the FCC in holding, "The Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent. Therefore, the Commission’s standards as applied to these broadcasts were vague, and the Commission’s orders must be set aside." This is a narrow decision on due process grounds. The Court avoided the overarching constitutional challenge to such FCC regulations on 1st Amendment grounds and held that the subject regulations (addressing nudity and profanity) were vague because the FCC failed to give broadcasters fair notice of the changes to its regulations and implementation. Here is a link to Justice Kennedy's decision: http://www.supremecourt.gov/opinions/11pdf/10-1293f3e5.pdf Dorsey v. U.S. & Hill v. U.S. In this narrow 5-4 ruling in a case addressing the evaluation of legislative history, the Court held that the federal Fair Sentencing Act, which reduced the disparities in the length of sentences for cocaine offenses, applies to defendants whose cocaine offenses occurred before the law went into effect, but were sentenced after the law's effective date. Here is a link to Justice Breyer's decision and dissent: http://www2.bloomberglaw.com/public/document/Dorsey_v_United_States_No_Nos_115683_115721_2012_BL_153786_US_Jun This Thursday morning we will have the opportunity to review the final two cases we have been waiting for, which address Obamacare and its individual


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