No, it's not constitutional, but Congress--not the courts--should be making immigration policy
This is the second time in two years that the Supreme Court has deliberated about how much leeway states should have to enact their own immigration laws. Last year, in a ruling about state-imposed employer sanctions, the court gave Arizona a green light. In that case, the justices didn't need to consult the Constitution, because they found that the Arizona act lined up with federal law—it uses the same definitions, accepts the feds' determination of who is unauthorized, and otherwise "tracks" federal immigration law "in all material respects."
Does SB 1070 track federal law? That's likely to be a key concern for the justices again this year. And while it's dangerous to predict, I expect the court will find that at least parts of the measure pass muster.
But that in itself shouldn't make the law a model for other states.
Constitutional or not, SB 1070 and other statutes like it have been practical disasters. The problem arises when states go beyond implementing the law and use the enforcement tools at their disposal to try to drive immigrants away. Arizona, Alabama, and Georgia show what can happen. All three have enacted law based on the concept of "attrition through enforcement"—deliberately making life so difficult for immigrants that they voluntarily pick up and leave the state. The result: tens of thousands of immigrants, legal and illegal, have fled—with devastating consequences for the economy in all three states.
All of which raises a bigger question: Should the courts be making immigration policy? They have a role to play, protecting the Constitution and preventing abuses. But surely it's a limited role. Not only is it impossible for judges to take account of all the practical considerations that should go into immigration policy—from economic issues to consequences for American culture to how open and welcoming a country we want to be.
But even if these issues could be handled well in court, that won't resolve the political debate. Policies made by judges invariably leave one side feeling cheated and angry, allowing what should be decidable political issues to widen into cultural divides. Look at busing and abortion. Is that really where we want to go with immigration?
The Supreme Court will have its say on SB 1070, but that shouldn't be the end of the debate. Congress needs to come back to the issue and mediate it—the sooner, the better.