Posted by on April 25, 2012 in Blog

Today, the Justices of the Supreme Court will hear arguments on the federal challenge to Arizona’s controversial state-based immigration law, SB 1070. The primary question presented to the Supreme Court is whether federal immigration laws preclude Arizona’s efforts at cooperative law enforcement and preempt the provisions in SB 1070. The Obama administration will argue that the law "would intrude on the federal government's exclusive power over immigration." In return, Arizona will argue that "it has the right to tackle a law-enforcement matter that the government has failed to address." The SCOTUS decision in Arizona v. United States will bear profound implications. If SB 1070 is upheld, states will have the ability to enforce laws that dial back civil rights, promote racial profiling, and impose strict controls on the daily lives of immigrants and other ordinary citizens.

The federal challenge to SB 1070 is focused on the enforceability of four of the law’s provisions. If the Court concludes that they conflict with federal law or disrupt federal enforcement, it would not allow them to take effect. If it finds that they have no such impact on federal law or enforcement, it would let Arizona start enforcing them. The four provisions are:

  1. A provision requiring police to see documentation of immigration status before releasing anyone who is arrested. Police can also demand to see documentation of anyone they suspect is an illegal immigrant [Section 2(B)].
  2. A provision making it a state crime to be in Arizona without legal immigration papers  [Section 3].
  3. A ban forbidding all undocumented immigrants from applying for a job or working in the state  [Section 5(C)].
  4. A provision allowing the police, without a warrant, to arrest anyone believed to have committed a crime that would lead to deportation [Section 6].

While the federal challenge deals with some of SB 1070’s most odious provisions, the law itself is much broader in scope. Lower courts, however, have turned down the federal government challenge to a number of key sections of the law. For example, the challenge to the clause that criminalizes transporting or harboring an illegal alien or encouraging an illegal alien to come to or live in Arizona was struck down. There are also 10 provisions of SB 1070 that the federal government did not challenge at all, including a section that allows any Arizona resident to sue any state official or agency for lax enforcement of federal immigration laws.

Also notably absent from the federal government’s challenge is any mention of racial profiling. Thus, the challenge to SB 1070 is not as comprehensive as civil liberties advocates would have hoped. The fact that the law opens the door to the indefinite detention of individuals simply because they look like foreigners is a glaring omission from the challenge. Racial profiling is, however, mentioned in many of the Amicus Briefs on the case, and thus will likely be brought up in the challenging arguments from Solicitor General Donald Verrilli. A successful challenge would nonetheless represent a significant blow to Arizona’s brand of anti-immigrant legislation and would protect against further erosion of our civil liberties from states’ immigration enforcement efforts.

Many predictions about how the Justices will vote look favorable for the administration’s challenge. The key indicator came from a previous case on immigrant rights from Arizona, US Chamber of Commerce v. Whiting. Justices Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor can reasonably be expected to vote against SB 1070 having dissented in this case. Of all the remaining judges, all but Clarence Thomas in the Whiting case expressed some openness to the idea that there is a threshold that can be crossed after which a state law can be considered “in tension with federal objectives.” Elena Kagan has recused herself, but a tied 4-4 vote would uphold the 9th Circuit’s decision against the law.

The tide is also turning against SB 1070 and its copycats in other ways as well. SB 1070 initially prompted a string of 5 copycat bills in Alabama, Utah, Georgia, South Carolina and Indiana. After many of these states experienced significant damage to their economies and reputations as a direct result of this anti-immigrant legislation, lawmakers in other states began to distance themselves from SB 1070 and its successors.

MSNBC’s Tom Curry astutely commented that Arizona v. United States is “almost as much of a 2012 campaign event as it is a courtroom face-off.” Divisions within the GOP on SB 1070 are evident as well. Senator and possible VP candidate Marco Rubio noted the difference between himself and Mitt Romney saying, “I do not believe that laws like Arizona’s should be a model for the country.” Thus, Mitt Romney may very well see the tide turn against the extreme immigration positions he took to help secure the GOP nomination.

Arizona v. United States is in many ways the culmination of a discouraging national dialogue on immigration, that has been characterized by politicians vying to out-do each other on the harshest means to deal with the United States’ 12 million undocumented immigrants. The tone and tenor of the debate surrounding the SCOTUS arguments will likely be as toxic as ever, but the prospect of the worst provisions of SB 1070 being overturned is an exciting development. Hopefully the SCOTUS decision will change the trajectory of the discussion back toward a humane, national solution that protects our civil liberties. 

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