If it wasn’t for health care, the Supreme Court would be embarking on the biggest case on its docket on Wednesday. Like the health care debate, the high court’s case about Arizona’s tough immigration law will provoke a lot of strong feelings and bold statements that have little to do with the case. There will be protests and vigils outside the courtroom and all over the country, and most people won’t even be touching on the legal questions.
The case isn’t about the Dream Act or racial profiling or citizen lawsuits against police officers or amnesty. The decision won’t be a judgment on whether the administration and Congress have failed in their responsibility to secure the border or create an orderly immigration system. The justices won’t decide how Hispanics will vote in the November elections.
All of those issues will come later.
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The justices will question the Justice Department and the state of Arizona about whether Arizona’s law is preempted. DOJ says the state statute goes beyond the bounds of federal immigration law that gives sole and exclusive power on immigration policy to the federal government. Arizona says the law is complementary to federal immigration law, giving officers assistance they badly need for enforcement.
The Supreme Court’s decision is likely to be convoluted. The justices are assessing four provisions of the state law that have been halted by a lower court. The provisions in question are as follows: 1) requiring police officers to check the immigration status of the people they stop if they suspect the person is in the country illegally; 2) allowing warrantless arrests if the officers reasonably believe the person is deportable; 3) requiring people who are stopped to carry ID proving legal status; and 4) making it a crime for undocumented workers to solicit employment.
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Legal analysts disagree about which are the most problematic parts of the law, but the ID requirement certainly ranks at the top of the list from a practical point of view. What is to be done with legal foreign minors? What counts as a valid ID?
It is also unclear how justices will view the provision criminalizing work solicitation. It is a new idea not included in the 1986 federal law that made it illegal for employers to hire undocumented workers.
Those questions are different from the police officers’ new duties under the law, which could be viewed as simple changes to make their jobs easier. Police officers in Arizona talk about waiting hours for immigration authorities to show up when they have stopped people for other reasons and they believe they are undocumented. Sometimes they have to let those people go. If Arizona law were upheld, it would allow the police officers to bring them in to their facilities.
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There is nothing in the United States’s brief against the law that mentions racial profiling, although Democrats and civil rights advocates say the “show me your papers” provision leads to that. The authors of the law vigorously protest that characterization. Kirk Adams, a Republican running for Congress who formerly was Arizona's House speaker, said state legislators went to extreme lengths to protect citizens from racial profiling. Sen. Chuck Schumer, D-N.Y., who held a hearing on the Arizona law on Tuesday, didn’t buy it. “Why don’t you just say everyone stopped by police has to be checked? Why do you require police to form opinions?” he asked.
By accepting the immigration case, the justices have invited a summer full of dialogue. Civil rights groups have racial profiling cases teed up in the lower courts. Democrats and immigration-reform advocates are riling up the Hispanic voting bloc. Legislators are ready to pounce with legislation. The justices, meanwhile, will be focused solely on what states are allowed to do to enforce immigration.