Big win at the Supreme Court

In what was surely the most anticipated decision of the Supreme Court’s term, Arizona v. United States came down today and not in the way anybody expected. In a 5-3 decision (Justice Kagan took no part), the Supreme Court rejected three of the four contested provisions and cast serious doubt on the viability of the fourth provision. What remains of SB 1070 is a hollow shell of the legislation promised and promoted by Russell Pearce, Jan Brewer, and the Mario Mendoza of immigration litigation, Kris Kobach.

SB 1070, of course, is the notorious Arizona law that sought to achieve “attrition through enforcement” by making life miserable for immigrants, and those that looked like immigrants. The law sought to criminalize unlawful presence in the U.S. and sought to prohibit undocumented immigrants from seeking employment in Arizona. Most noxiously, it sought to turn all law enforcement personnel in immigration agents.

The four challenged provisions relate to new crimes created by SB 1070 and the authority of Arizona law enforcement to make demands on individuals to provide proof of lawful immigration status. Section 2B requires police officers to communicate with Immigration & Customs Enforcement (ICE) to ascertain the immigration status of anyone they lawfully stop, arrest or detain, if reasonable suspicion exists that the person is a foreign national and is unlawfully present in the U.S. Section 6 allows a state officer to, without a warrant, arrest a person if the officer has probable cause to believe that the person has committed an offense that makes him removable from the U.S. Section 3 creates a new state misdemeanor criminalizing an individual’s willful failure to carry an appropriate immigration document. Finally Section 5C makes it a state misdemeanor for “an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor.”

In an opinion by Anthony Kennedy, the Court found that the federal government had “occupied the field” of immigration criminal violations and that states were preempted from adding their own crimes and penalties onto exclusively federal violations. Thus, Sections 3 and 5C can conflict with the “careful framework Congress adopted” and are preempted by federal law. The Court also rejected Section 6, which would have allowed an Arizona law enforcement agent to arrest an individual for a perceived immigration violation even where the federal government has not chosen to act. The Court was skeptical that Arizona agents would be able to master the increasingly complex set of rules that govern unlawful presence in the U.S. In addition, the Court found that “a decision on removability requires a determination whether it is appropriate to allow a foreign national to continue living in the United States.”

The Court did not strike down Section 2B, which has led a lot of unsophisticated commentators to declare that the Supreme Court “upheld” the “papers, please” provision of 2B. Section 2B requires Arizona law enforcement agents to ascertain the immigration status of those lawfully stopped, arrested or otherwise detained for some other non-immigration related reason. The Court held that it was premature to believe that Arizona would execute this provision in an unconstitutional manner. The Court addressed the legitimate complaints that such power could lead to pretextual stops, racial profiling or “driving while brown.” However, the Court provided that the section “could be read to avoid these concerns.” The Court saved for another day the question “whether reasonable suspicion of illegal entry or another immigration crime would be a legitimate basis for prolonging a detention.” Justice Kennedy also reminds Arizona and the world that the opinion “does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.” In his opinion concurring in the Court’s decision not to enjoin section 2B, Justice Alito recognized that serious constitutional concerns remain with 2B and that future litigation is all but guaranteed: “there is no denying that enforcement of 2B will multiply the occasions on which sensitive Fourth Amendment issues will crop up. These civil liberties concerns, I take it, are at the heart of most objections to 2B. Close and difficult questions will inevitability arise as to whether an officer had reasonable suspicion to believe that a person who is stopped for some other reason entered the country illegally and there is a risk that citizens, permanent residents, and others who are lawfully present in this country will be detained.” The day of reckoning is coming for 2B.

Overall, this is a smashing victory for immigrants. SB 1070 stands repudiated soundly in the Supreme Court and the other states that have enacted terrible immigration laws, such as Alabama, South Carolina, Indiana, Georgia, and Utah, should be aware of the severe restrictions on their ability to operate in this sphere. Given the fiscal health of many state governments, it is a wonder that citizens of these states put up with the state spending millions to defend these doomed laws. The survival of 2B is temporary. Given the track record of Maricopa County Sheriff Joe Arpaio in persecuting immigrants, it is only a matter of time before a challenge to an action under 2B makes its way through the courts. And when it does, it will come with damages for the victim of racial profiling, wasting more of the state’s resources that are desperately needed to create a future for Arizona.

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