The One Sentence From Arizona v. United States That You Need To Know For Texas's New Immigration Law (Updated)

"There is no need in this case to address whether reasonable suspicion of illegal entry or another immigration crime would be a legitimate basis for prolonging a detention, or whether this too would be preempted by federal law."

Today, Texas Governor Greg Abbott signed into law S.B. 4. This law makes it a state offense to illegally cross the border. Before you shout that this law clearly violates Arizona v. United States (2012), re-read this passage from Justice Kennedy's majority opinion:

However the law is interpreted, if §2(B) only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive pre-emption—at least absent some showing that it has other consequences that are adverse to federal law and its objectives. There is no need in this case to address whether reasonable suspicion of illegal entry or another immigration crime would be a legitimate basis for prolonging a detention, or whether this too would be preempted by federal law. See, e.g., United States v. Di Re, 332 U.S. 581, 589 (1948) (authority of state officers to make arrests for federal crimes is, absent federal statutory instruction, a matter of state law); Gonzales v. Peoria, 722 F.2d 468, 475–476 (CA9 1983) (concluding that Arizona officers have authority to enforce the criminal provisions of federal immigration law), overruled on other grounds in Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (CA9 1999).

Arizona left open the question of whether Texas can detain aliens who violated federal immigration law. I made this point in the New York Times in October:

"The core question is whether the states can make it a crime to violate federal immigration law, and detain an alien for violating that law," said Josh Blackman, a constitutional law professor at South Texas College of Law Houston, who has written that Justice Anthony Kennedy, the author of the Arizona decision, left open the question of detentions.

I am skeptical that Arizona v. United States, a 5-4 decision, would come out the same way today. But there is no need to revisit the decision, as Justice Kennedy expressly left the issue unresolved. I still think there may be some wrinkles with the state law with regard to processing asylum claims, but that will come out in litigation. Speaking of which.

I expect the United States to file suit any minute in the Western District of Texas, Austin Division, where it will likely be assigned to Judge Roger Pitman, who tends to get most of the federal government's suits against Texas that are filed in Austin. The ACLU will also find a favorable division somewhere in the Valley. Conservatives are not the only ones who know how to forum-shop. All of which is to say that in the near future, the Fifth Circuit will be likely asked to stay a district court injunction. And at that point, the case will come to the Supreme Court's emergency docket. And we know how the Fifth Circuit tends to fare on the emergency docket.

Update: I appreciate the Orin wrote a brief reply to my post. He explains that this passage only concerned the duration of a Terry stop. He wrote, "all it did was leave open whether a state is allowed to add on that extra 20-30 minutes or so to investigate an immigration offense."

Justice Kennedy made two points.

First, the Court did not resolve "whether reasonable suspicion of illegal entry or another immigration crime would be a legitimate basis for prolonging a detention." That is the Terry issue. In other words, a suspicion that a person illegally entered would be subject to the usual constraints of the Fourth Amendment. No debate there.

Second, the Court declined to resolve an issue beyond the Fourth Amendment: "whether [prolonging a detention for] reasonable suspicion of illegal entry or another immigration crime … would be preempted by federal law." In other words, the Court could have held that a detention of any duration, indeed one less than the 20 or 30 minutes that Terry would otherwise allowed, would be preempted.

My post was referring to the second point. The parentheticals that follow also address the preemption issue.

If the short term detention for reasonable suspicion is not preempted, and the person is found to have illegally entered, then he violated state law, and a lawful arrest can be made.

Had Justice Kennedy said even a brief detention would be preempted, I don't think Texas could ever even detain the person to determine their immigration status. Is that right? I don't think this issue is clear, or open-and-shut. My only point was that the issue is not foreclosed by Arizona.