Posted by on April 26, 2012 in Blog

By Danielle Malaty

Challenging the Obama administration’s initial stance on SB 1070, Arizona State’s immigration law, the Supreme Court justices yesterday seemed to take little issue with key elements of the draconian immigration law that essentially mandates Arizona police to check the legal status of people they stop for other potentially pretextual reasons. A majority of U.S. Supreme Court justices indicated Wednesday that they will most likely uphold at least a portion of Arizona's controversial immigration law, despite the fact that four provisions of the law were blocked by a federal appeals court last year.

While some of the bench’s conservatives expressed uncertainty about some of the blocked provisions, the majority appeared to be willing to reverse the injunction on the so-called "show me your papers" provisions, which authorize both state and local police or law enforcement officials to check the immigration status of anyone they stop for any reason. No matter how frivolous or petty the offense, if the officer “reasonably suspects” that the individual is an undocumented person (an extremely low threshold often based on pure subjectivity) then the officer may demand papers.

Several civil rights groups around the nation, including the Arab American and American Muslim communities, have said that if the show-me-your-papers provisions are upheld, they will not hesitate to subsequently challenge them as a thinly veiled mechanism for racial profiling. Despite racial profiling being the main thrust of anti-SB-1070 activists, oral arguments on Wednesday seemed to exclusively focus on whether the law illegally or unconstitutionally usurps the immigration powers of the federal government, much to the chagrin those opposed to the legislation. The court was looking only at state-versus-federal power, not the civil rights concerns that are already at the heart dozens of lawsuits.

Most of today’s arguments focused on the show-me-your-papers provisions. Justice Anthony Kennedy, expressing the concern of many Americans, asked Bush administration Solicitor General Paul Clement about the amount of discretion Arizona police officers had to take their time and verify a person's status. If it takes two weeks to make the determination as to whether the individual is deportable, he asked, can he be held by the state for the whole period of time?

Clement responded that there are always constitutional limits to such a detention. However, when further questioned on this topic by Justice Stephen Breyer, Clement conceded that he lacked certainty as to whether Arizona law would allow for said individual to stay in jail longer than he would in the absence of SB 1070.

Justice Samuel Alito echoed Justice Breyer’s concerns in explaining that a citizen who is stopped often cannot prove that he or she is a citizen of the United States, as there are no federal databases of citizens. He further explained, “there are some important categories of aliens" with pending immigration applications, such as those pursuing asylum status from foreign oppression, or as Justice Alito describes, people who "nobody would think should be removed." Sadly, proponents of the legislation are faced with this hypothetical and remain unaffected. To elaborate, the fruits of the ‘show-me-your-papers’ methodology in this particular hypothetical would indicate to the police officer that these people are in removal proceedings because they do not have a final grant of approval yet. Under SB 1070, that translates to indefinite incarceration.

After Clement concluded his argument before the bench, Solicitor General Donald Verrilli approached the podium to challenge the law as an unconstitutional encroachment on the federal government's exclusive immigration power. Before Verrilli even had the chance to utter a single word, Justice Roberts requested "to clear up at the outset" what the case is "not about." Justice Roberts explicitly asked the Solicitor General, "No part of your argument has to do with racial or ethnic profiling, does it?" Verrilli replied with a firm no.

Herein lies the primary obstacle that makes it so difficult to challenge the show-me-your-papers provisions. The government has brought what is referred to as a "facial challenge," which essentially means that the government proposes to prove that the law is unconstitutional, on its face, in all its applications. Though some of the justices conceded that some parts of SB 1070 may be in direct conflict with federal law, they showed far more skepticism regarding the challenge to the show-me-your-papers provisions—an eerie preview of what is to come of the way our country treats immigrants. In fact, during Verrilli’s argument, Justice Scalia defended the bill by stating "Arizona is not trying to kick out anybody the federal government has not already said does not belong here." Standing along among his fellow members of the Supreme Court, Antonin Scalia appeared to be ready to uphold the entire bill, which is, as he describes, an effort by Arizona to protect its borders.

Verrilli responded by saying that the federal government must set priorities, and that those priorities need to be more focused on dangerous criminals, drug cartels, and suspected terrorists. Justice Roberts subsequently posed the question of why Arizona could not have its own unique set of priorities. Verrilli quickly shot back by firmly asserting that those priorities must be set at the national level, particularly where immigration is concerned, because "it's the whole country, and not an individual state that pays the price." Roberts responded by saying that the state is merely notifying the federal government when an individual is not legally present in the US, therefore leaving it up to the federal government to prosecute or to deport these people.

Prepared for this argument, Verrilli responded by arguing that SB 1070 essentially allows Arizona to say to the federal government, "If you're not going to remove them, we are going to prosecute them under state law for being in the country illegally." Justice Roberts responded by saying "It seems to me the federal government just doesn't want to know who is here illegally." Verrilli firmly disagreed. He countered by arguing that Arizona's law, rather than helping, actually inhibits the cooperative enforcement of federal interests by overwhelming the system with frivolous cases, allowing more significant threats to national security to fall through the cracks, and therefore making the federal government liable for state priorities.

Verrilli listed the numerous groups of individuals who would hypothetically be incapable of proving their citizenship or legal presence, including victims of domestic violence and human trafficking, witnesses to crimes and individuals seeking asylum from war-torn countries or foreign persecution. Verrilli defended the legitimacy of these peoples’ claims to be in the United States. However, he further explained that under SB 1070, these men and women are technically in violation of the federal law and could therefore be prosecuted under the Arizona law for being in the country illegally until their applications are approved.

Concluding his argument, Verrilli argued that SB 1070 could jeopardize the president's foreign policy. In his words, Verrilli described the Arizona law to be a mandate for Arizona to engage in "mass incarceration", a practice that would inevitably alienate and possibly provoke important allies like Mexico, which shares our border and whose cooperation the U.S. needs on everything from law enforcement to deportation proceedings.

On the steps of the Supreme Court, over 200 protesters assembled in opposition to SB 1070, chanting and carrying signs such as "Do I Look Illegal To You?" Some shouted "shame on you" as Governor Brewer emerged from the building after the argument. Governor Brewer was asked if her state was prepared for a mass incarceration of the approximate 400,000 undocumented immigrants. She took a long pause, then replied: "If they're breaking the law, there's that possibility, I would assume." Ultimately, the fate of other provisions that make Arizona state crimes out of immigration violations was unclear in the court's final argument of the term.

Several justices, particularly Justice Stephen Breyer, communicated serious concerns over SB 1070’s adverse effect on civil liberties. Luckily, Arizona responded to those concerns expressed by the bench by retreating, and having nothing to say in their defense. In a sad attempt to mask what SB 1070 really is, Arizona defended SB 1070 as some fictional statute that only puts the federal government on notice that an individual has been detained due to their suspicion of illegal status.

No matter how diligently the proponents of SB 1070 try to defend this narrow and shortsighted reading of the law, it is unavoidable to reach the conclusion that this bill will result in a serious violation of the rights of citizens and lawfully present immigrants, an implication that not only threatens Americans of Latino descent, but also the Arab American and American Muslim communities. As we witnessed in the Supreme Court on Wednesday, it is virtually impossible for an individual without an identification card on their person, and possessing characteristics such as dark skin, ethnic features, or ethnic apparel to avoid being detained for an indefinite amount of time—sometimes an hour, sometimes weeks—while a suspecting Arizona officer demands that they prove their right to be here.

Arizona failed to defend what the state legislature actually did in SB 1070. This bill, on its face, implements a state immigration enforcement policy of zero tolerance and maximum punishment. What we as Americans have grown accustomed to is federal immigration law. Congress recognizes that immigration status is indeed far more complicated under federal law. Under federal law, the executive branch has the authority to allow an asylum applicant, or someone seeking other kinds of legal status, to stay in the US while their status is processing. But under SB 1070, those same individuals are subject to detention and even criminal prosecution just by virtue of their mere presence in the state, a risk they take every time they step foot outside their homes and venture out onto the streets of Arizona.

Chief Justice John Roberts asked whether Arizona v. United States is a case about racial profiling. Although the federal government lawsuit is about the limits on state power, racial profiling is at the heart of the issue. It is virtually impossible to enforce laws like SB 1070 without relying on prejudicial, racial, ethnic, and illegal stereotypes. Because of this, Arab Americans and American Muslims are at an extreme risk. If the Supreme Court permits the Arizona state legislature to step on the jurisdictional toes of the federal government, the entire nation is ultimately at a risk, as evidenced by the numerous copy-cat laws drafted in states such as Utah, Alabama, Georgia, Indiana, and South Carolina. Each ethnic, racial, or religious community in each state will likely live in a state of paranoia, fearing that their appearance will warrant heightened scrutiny.

Take the following example: a Muslim woman who emigrated from Syria currently awaiting the approval of a Temporary Protected Status application is pulled over while driving under the speed limit, simply because the police officer used his subjective personal considerations to establish suspicion based on her appearance.  The officer, operating under a law like SB 1070, has the authority to ask for the woman’s papers, and if she cannot produce them, he then has the authority to put the Federal government on notice. If the government responds to the notification by saying that they will not detain or deport because of her TPS application status, the state, under a bill like SB 1070, has the right to criminally prosecute the woman for illegal presence in the state of Arizona. 

If the Supreme Court fails to stand up for Federal law and defend the Federal government’s primacy over states’ rights in the realm of immigration law, we are establishing a precedent where each state has the freedom to usurp Federal immigration law and do what they wish with our nation’s numerous immigrants. Ultimately, it's not only up to the Supreme Court to decide if SB 1070 will pass. The American people must stand up and decide whether we will tolerate a nation with such invidious laws.

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