Posted by on June 25, 2012 in Blog

By Denyse Sabagh

Denyse Sabagh is a member of AAI’s Board of Governors, a partner at Duane Morris, and head of the firm’s Immigration Practice Group. She is also former national president and general counsel of the American Immigration Lawyers Association and a former member of the ABA’s Coordinating Committee on Immigration Law.

The Supreme Court's decision to strike down three out of four of the challenged provisions of Arizona's immigration enforcement law, S.B. 1070, is a step in the right direction. The Court determined that most of the provisions were preempted by federal authority over the immigration system, but it stopped short of striking down the racial profiling provision which requires police to verify immigration status when stopping, arresting, or detaining someone.

The Supreme Court today agreed with lower courts that three provisions of Arizona’s S.B. 1070 immigration law are prohibited as violating the federal government’s exercise of immigration powers. One provision, Section 2(B) was not blocked by the Court. The Court ruled it is too early to know if Section 2(B) can be implemented in a way that will not violate the Constitution.  Section 2(B), known as the “papers, please” provision, requires law enforcement officers to determine the immigration status of those they stop, arrest, or detain if there is a “reasonable suspicion” that the person is not lawfully present. However, the Court was clear that today’s opinion does leave the law open to other challenges after S.B. 1070 goes into effect. 

The decision raises concerns about the practical impact of the remaining provision of the Arizona law, which requires local law enforcement officials to check the immigration status of anyone they suspect to be here illegally. The Court ruled that individuals cannot be detained solely to verify their immigration status. As the President said, “No American should ever live under a cloud of suspicion just because of what they look like. Going forward, we must ensure that Arizona law enforcement officials do not enforce this law in a manner that undermines the civil rights of Americans, as the Court’s decision recognizes.”

On balance, this order is encouraging, particularly because the court kept the door open to future challenges to the racial profiling provision. But by allowing that section to remain, the Court is condoning state interference in immigration enforcement.  It encourages a patchwork of state laws which create more confusion in an already chaotic immigration system, and burdens communities with legal costs as these discriminatory laws are challenged in court. A patchwork of state laws is not a solution to our broken immigration system — it’s part of the problem.

Congress needs to step in and take a principled stand and concrete action to deter destructive state action; maintain an effective federal immigration system; and create a national and uniform solution. The Department of Justice needs to redouble its efforts to ensure that the civil and constitutional rights of all Americans are protected against these kinds of racial profiling. 

Arizona’s law does nothing to address the fundamental problems of today’s immigration laws.  It’s time to bring them into the 21st century.  Come on Congress, do your job!

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