Despite the Supreme Court’s definitive ruling on Monday that struck down most of Arizona’s tough immigration law, the measure’s defenders can still cheer that Arizona’s local police officers are now able to routinely check the immigration status of the people they stop for other reasons. The state’s Republican Gov. Jan Brewer said she is “grateful for this legal victory.”
But with three of the four provisions of Arizona’s law struck down (ID requirements, warrantless arrests, and criminalizing work), other states weighing similar laws are left with little certainty on how to proceed. Even if states simply want to emulate Arizona’s surviving “show me your papers” provision, they will be vulnerable to lawsuits charging racial profiling.
The high court didn’t touch the idea of racial profiling because the federal government made the decision not to raise the thorny civil-rights issue in this case. There are several court cases pending from civil-rights groups arguing the “show me your papers” part of Arizona’s law improperly encourages racial profiling from police officers.
Immigration is bigger than the questions raised in the Arizona case, which turned on the relatively narrow legal question about whether federal law can preempt state law. Politically, immigration has emerged as one of the hottest motivators for get-out-the-vote campaigns among Hispanics, a key voting bloc for President Obama and other Democrats seeking congressional office.
Obama’s announcement earlier this month to create a temporary deferral program for so-called “dreamers,” undocumented youth who were brought to the United States illegally when they were children, was a not-so-subtle statement about the federal government’s preeminence on immigration policy. The announcement has the added benefit of rallying Hispanics to go to the polls to ensure that Obama—and the new policy—stays put.
Democrats, who want broader immigration overhaul including a path to citizenship for undocumented immigrants, crowed at the Supreme Court’s decision. “Three linchpins of the Arizona law were struck down by a convincing majority of the Court as clearly violating federal law, and a fourth is on thin legal ice,” said Sen. Chuck Schumer, D-N.Y., who chairs the immigration panel on the Senate Judiciary Committee and is charged with shepherding immigration legislation through the Senate.
The Court showed some understanding about the plight of border states that bear the brunt of illegal-immigration problems. Republican Sens. Jon Kyl and John McCain, both of Arizona, said in a joint statement that the justices validated “a key component of Arizona’s immigration law [that] was born out of the state’s frustration with the burdens that illegal immigration and continued drug smuggling impose on its schools, hospitals, criminal justice system, and fragile desert environment.”
CIVIL RIGHTS UP NEXT
According to Arizona’s defenders, the racial-profiling charge is a red herring. They posit the U.S. government specifically avoided raising questions of racial discrimination in their arguments because such arguments would not fly.
But civil-rights groups have remained undaunted. There are several lawsuits pending in lower courts that pose completely different questions than the ones answered by the Supreme Court. The American Civil Liberties Union and other groups have challenged the Arizona law, saying it invites racial profiling and violates the First Amendment. That case is expected to go before the U.S. Court of Appeals for the Ninth Circuit, the same circuit that agreed with the federal government that Arizona overstepped its bounds in enacting the law.
Alabama, South Carolina, Georgia, and Utah have enacted laws similar to Arizona’s requiring police officers to investigate the immigration status of all persons they stop if there is “reasonable suspicion” that they are in the country illegally. They can only rest assured that those provisions will survive scrutiny on federal-preemption questions, not on questions about civil rights.
The Alabama law goes further than Arizona’s statute, requiring school officials to inquire about the immigration status of students. Civil-rights groups have a lawsuit pending against that state as well, saying its immigration law chills children’s access to public schools, invites racial profiling, and criminalizes state residents for everyday interactions with undocumented individuals.
WHERE STATES MAY NOT TREAD
Elected state officials have legitimately complained that more needs to be done to fix the byzantine immigration law, which hasn’t seen a serious overhaul in 18 years. Yet the Supreme Court was clear in its decision that the states are at most sidekicks in the enforcement of immigration law.
Immigration is the federal government’s show, and it will continue to be so despite Arizona’s efforts and complaints. Just look at what the high court said when it struck down the part of the Arizona law making it a crime for an undocumented immigrant to not have registration papers—“States may not enter, in any respect, an area the Federal Government has reserved for itself,” said Justice Anthony Kennedy. It’s hard to get clearer than that.
And here’s what the Court had to say about Arizona’s idea to allow police officers to make warrantless arrests of people they believe are in the country illegally: “Detaining individuals solely to verify their immigration status would raise constitutional concerns.” Yep. The Court read the Immigration and Nationality Act correctly. Deportation, detention, asylum—they are all actions that the federal government alone takes.
It isn’t all bad for the states. They can now claim that they are perfectly within their rights to assist the federal government in enforcement activities and can even pass laws to clarify their roles. Local police cooperate with federal officials now through the Homeland Security Department’s “Secure Communities” program, in which local and federal officers share information about the legal status of people who have been detained for other reasons. Local police don’t need special training to do this, although the decision about what ultimately happens to these people lies with those who understand the nuances of the complex law.
“Consultation between federal and state officials is an important feature of the immigration system. Congress has made it clear that no formal agreement or special training needs to be in place for state officers to ‘communicate with the [Federal Government] regarding the immigration status of any individual,’ ” Kennedy wrote.
There is still the “effectiveness” question, which the Supreme Court did not (and arguably cannot) answer. Is the federal government doing enough to secure the border and curb illegal immigration? Arizona’s defenders say the preponderance of state laws weighing in on immigration means that the answer is an unequivocal "no."
No matter how many ways you parse the Supreme Court’s ruling, that conversation will go on.