Constitution Check: Does failure to strike down a law mean it has been upheld?

Constitution Check: Fact-checking the news
Lyle Denniston looks at claims the Supreme Court really upheld the most controversial part of Arizona’s immigration law, when in fact that might not be an accurate statement.

The statements at issue:

“Today’s decision by the U.S. Supreme Court is a victory for the rule of law…After more than two years of legal challenges, the heart of SB 1070 can now be implemented in accordance with the U.S. Constitution.”

– Arizona Governor Jan Brewer, in a statement titled “U.S. Supreme Court Decision Upholds Heart of SB 1070,” June 25, commenting on the Justices’ 5-3 decision on the Arizona immigration law. (Only eight Justices took part because Justice Elena Kagan disqualified herself because of her former role in the federal government.)

“The Supreme Court on Monday delivered a split decision on Arizona’s tough immigration law, upholding its most hotly debated provision but blocking others on the grounds that they interfered with the federal government’s role in setting immigration policy.”

– Adam Liptak, New York Times reporter, in a news story June 25, under the headline “Blocking Parts of Arizona Law, Justices Allow Its Centerpiece.”

“Regarding the [Arizona] law’s central and most controversial element – requiring officers to inquire into the immigration status of anyone picked up for some other violation – the ruling was definitive, indeed unanimous.  No liberal-conservative divide here.  The smackdown [of the federal government challenge] was 8-0.”

– Charles Krauthammer, columnist, in an op-ed commentary July 6, in The Washington Post, commenting on the immigration decision as it related to President Obama’s leadership; the column was titled “The incompetent imperial presidency.”

We checked the Constitution, and…

Since Chief Justice John Marshall’s famous decision in Marbury v. Madison in 1803, the Constitution has been understood to give the Supreme Court the ultimate authority to strike down a federal or state law as unconstitutional.   But the failure to use that power does not always mean that the law the justices have in front of them has been upheld.

There appears to be a lingering interpretation that the court has “upheld” Arizona’s controversial “show me your papers” requirement for undocumented immigrants living in that state.  But whether that assessment came on the day of the ruling, or later, is at least an over-simplification, and might be said to be simply wrong.

Qualification and nuance can limit what a Supreme Court ruling on a constitutional issue really means, and yet there is sometimes a strong yearning – as in sports journalism – to say simply who “won” and who ”lost.”   (Some media did get the court’s health care ruling wrong by declaring too soon who had “won” or “lost.” But that’s another story.)

To get the answer to the question of whether the key part of Arizona’s law has been “upheld” (as opposed to not being struck down), it is first useful to talk about what kind of constitutional challenge has been made in an effort to strike down a law such as this one.

There are “facial” challenges, and there are “as-applied” challenges.  A “facial” challenge means that the challenger is arguing that the law is unconstitutional in the very words it uses — what it actually says – and that there is no real-world factual situation in which it can be enforced.  Such challenges come before a law even takes effect, and they are not often successful

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

An “as-applied” challenge, however, comes after a law has gone into effect, and the challenger contends that, in a given set of actual facts, the law is invalid and cannot be enforced any time those same facts are present.

In law books as in news stories, to say that a law has been “upheld” usually should mean that it has withstood a constitutional challenge once and for all, whether it confronted a “facial” challenge or one based on how the law was “applied.”

Here is the situation with Arizona’s immigrant control law, SB 1070: four of its provisions were confronted by a “facial” challenge, but only one argument was made against those four.  The government argued that the state law was “preempted” – that is, that it trespassed upon powers that the federal government has over immigration.  That was a “facial” challenge because, if the government was right, Arizona could not enforce that law, ever.  (Under the Constitution’s Supremacy Clause, a federal law always trumps a state law on a given topic if they clash.)

Three of the four parts of the Arizona law met that fate: they were struck down – period — on the premise that they interfered with federal enforcement of immigration laws no matter how they might be enforced.

The fourth provision was always the most controversial, and it was, indeed, properly considered the law’s “centerpiece.”  That is SB 1070’s Section 2, which requires Arizona police, any time they arrest someone for any reason and they believe the person might be in Arizona illegally, to check with federal officials whether that is true, and to hold the person until they are satisfied about legal status.

The Court did not strike it down “facially,” saying that the law had not yet been interpreted by state courts and that such review might save it from later constitutional challenges.  The Court declared: “This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.”   And the opinion recited several situations that might raise constitutional problems with actual enforcement.

In short, it was not upheld; its ultimate constitutional fate was, in essence, put off.   There are already challenges going on in lower courts; perhaps the most significant is that the law will lead to “racial profiling” because officers will detain individuals just because they look like foreigners.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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