Immigration and the Fourth Amendment

With only a couple more months to go in this Supreme Court term, two more important cases were recently argued, one dealing with immigration and another with the Fourth Amendment.  With the Court divided as a result of Justice Scalia's death, major issues face the Court and 4-4 decisions remain possible—if not probable at times.  See below for my latest update to a Conservative's Guide to the Supreme Court.

United States v. Texas

United States v. Texas involves a challenge by a number of states to President Obama’s new immigration program that would grant lawful status to more than four million illegal aliens. The Justices appeared deeply divided during oral argument last week.  The conservative Justices strongly suggested that Texas can challenge the program because it forces Texas to spend money.  Since Texas links the eligibility for driver’s licenses to federal immigration law, President Obama’s new program injures Texas by forcing it to give driver’s licenses to many new people.  In contrast, the liberal Justices indicated that they do not believe Texas has been injured at all by the new program’s decision to grant work authorization and federal benefits to certain illegal aliens.
On the merits, the Justices appeared equally split on whether President Obama overstepped his authority by purporting to grant lawful presence to many illegal aliens.  During oral argument, the federal government claimed that the new program does not, in fact, grant aliens lawful status.  According to the government, the program informs aliens that because they are low-priority removals, their presence in the country will be tolerated.  But counsel for Texas argued that by designating aliens as lawfully present, the federal government allows them to receive numerous governmental benefits to which they are normally not entitled.
Leading coverage of the oral argument likewise suggests that the Justices agreed on very little.  One commentator wrote that the Justices appeared strongly split along ideological lines.  Overall, it remains likely that the Court will resolve this case either by a vote of 5-3 or 4-4.  The disagreements during oral argument suggest that, at this time, there is very little consensus among the Court’s liberal and conservative wings.

Birchfield v. North Dakota

Birchfield v. North Dakota and two related cases concern whether a state can criminalize a driver’s refusal to submit to chemical testing to measure alcohol in his body without the police having first obtained a search warrant.  Virginia is one of several states with laws like these.  In a conversation focusing more on practical realities than legal subtleties, the Justices heard argument in these cases on April 20. 

The Fourth Amendment to the U.S. Constitution generally requires law-enforcement authorities to secure a warrant before searching a criminal suspect.  The individual petitioners—to quote their lawyer at oral argument—contend that “[t]he fundamental problem with the statutes at issue in these three cases is that they make it a criminal offense to assert a constitutional right.”  The state respondents counter, among other things, that it can sometimes take so long to obtain a warrant that the usefulness of testing decreases as the level of alcohol in a person’s body naturally drops over time.

The Court showed great interest in three particular practical realities.  First was a perceived difference in the invasiveness of breath and blood tests.  Several Justices suggested that the Constitution might allow the former in more circumstances than the latter.  Second was the existence of systems allowing officers to procure warrants in a matter of minutes.  Some Justices expressed doubt that the failure of certain states to adopt these systems should alter the Fourth Amendment’s usual warrant requirement.  Third was the fact that breath and blood tests are often performed at police stations or hospitals instead of the roadside.  If it takes time to transport suspects to those locations anyway, the Justices asked, can’t officers use that delay to attempt to obtain warrants, thus often precluding the problem on which the states relied?

As my original comments on these cases explained, the Court’s precedent makes a tie vote a real possibility in light of Justice Scalia’s absence.  But the practical realities at the heart of the oral argument might convince a majority of the Court that warrants are easy enough and—at least with respect to blood tests—important enough to obtain that the laws in question here violate the Fourth Amendment.