The Supreme Court's 1070 Ruling Is No Win for Teabaggers

Tim Gabor

Millions spent in legal fees. Hundreds of millions (at least) lost in revenue from convention and hotel booking cancellations due to boycotts. The immeasurable cost of being branded a state led by bigots, much less the assured infamy when judged by history.

Weigh all these outcomes together and, on the other side of a scale, place a 5-3 U.S. Supreme Court ruling that reaffirms the federal government's "broad, undoubted power" over immigration and shuts down any notion of allowing the states to experiment with immigration enforcement.

Now, would you label that a "victory"?

That's what our genius governor, Jan Brewer, declared in a press release e-mailed to all and sundry a matter of minutes after the high court had ruled Monday in the Arizona Senate Bill 1070 case Arizona v. United States.

Maybe her advisers scanned Justice Anthony Kennedy's 25-page decision. Perhaps they even read through the four-page summary that preceded it. But rather than the sober, measured response Brewer should have copped, they had her doing a fist pump for the press.

Granted, that likely was a matter of public relations strategy: tell the biggest lie and tell it before your enemies have time to get their message out. Since you're out in front, it's your spin that prevails. Or so goes the theory.

But in this case, screaming first and loudest and longest just made Brewer look that much more ridiculous once people took the time to read what the majority had decided.

As if her "victory" speech wasn't bad enough, Brewer donned a red nose and Ronald McDonald shoes in a hysterical overreaction to the news that the U.S. Department of Homeland Security had axed all 287(g) agreements it had with Arizona law enforcement agencies.

The DHS was playing its own public relations game, making it seem as though the feds would not stand for racial profiling or indiscriminate roundups of brown folks, now that the Supremes had okayed SB 1070's "papers please" provision, section 2(b).

Arizona was on notice. We want only the really bad criminal aliens, the feds seemed to be saying. And just to be certain, we're going to tear up the 287(g) agreements, which allow local cops to be cross-trained as immigration agents.

(Those 287(g) officers in participating Arizona jails were spared, natch.)

If you know absolutely nothing about the 287(g) program, you might see a certain strained logic to the move, even if you disagree with it.

But those who follow the twists and turns of federal immigration policy are aware that the DHS signaled earlier this year it would begin phasing out the 287(g) program in favor of its Secure Communities initiative, which identifies undocumented aliens only after they get booked into local jails.

And guess what: Each of Arizona's 15 counties already uses Secure Communities. So, the gesture was an empty one on DHS' part, but the feds did score, in terms of public relations. Brewer turned on a dime and began raising holy hell, claiming that the Obama administration had "abandoned" Arizona to the not-so-tender mercies of the Mexican cartels.

Even worse, President Obama — that evil black man — had declared "war" on the state of Arizona. Before you could blink twice, Brewer's JanPAC was hustling for donations with this line, using a picture showing a glaring, grinning president looking like he's about to eat the governor for breakfast.

In just a matter of hours, Brewer had gone from warrior queen to damsel in distress, without the benefit of a costume change. But the real role Brewer had assumed was the one the Obama administration had planned for her all along: chump.

Or in this case, chump-ess.

By the yardstick of SB 1070's primary pimp, recalled state Senate President Russell Pearce, the Supreme Court decision was a major letdown for nativists — if not an outright loss.

Pearce had predicted a win more than once, envisioning a majority decision that allowed all four of the provisions enjoined by District Court Judge Susan R. Bolton, and later upheld by the Ninth U.S. Circuit Court of Appeals, to go into effect.

A great believer in the concept of "states' rights," Pearce often has asserted that the states have an "obligation" to enforce immigration law and "defend" their territory from "invasion."

Pearce even believes that states should have the power to determine the requirements of U.S. citizenship. Remember, this is the same man who pushed for a bill that would have denied certain citizenship rights to first-generation Americans born to undocumented parents.

"We'll win this one at the Supreme Court," Pearce said of SB 1070 in April, when Attorney General Tom Horne was a guest on Pearce's KFNX radio program.

"And it'll be a 5-4 decision," he added. "I can guarantee you at least five of the Supreme Court justices care about states' rights and the Constitution."


Pearce seemed to have forgotten that Justice Elena Kagan had recused herself from the case. A 5-4 ruling in his favor would have been impossible.

This slip aside, Pearce's states' rights view of immigration was in the distinct minority in Arizona v. United States. You don't have to take my word for it. Just check out the opinion of the justice who was the most hostile to the federal government's case during oral arguments, Antonin Scalia.

Scalia's dissenting opinion made clear that he believed the majority's decision was fundamentally wrong and opposed a kind of immigration federalism in which states act in their "sovereign" capacity.

"As a sovereign," Scalia opined, "Arizona has the inherent power to exclude persons from its territory, subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress."

This is the view of both Pearce and Brewer. In fact, when Brewer did her impersonation of President George W. Bush's premature "mission accomplished" speech aboard the USS Abraham Lincoln in 2003, she also called the court's 1070 ruling a "victory for the Tenth Amendment," the amendment that essentially guarantees the principle of federalism, a byword for "states' rights" among Teabaggers.

But Scalia did not find the majority's decision to be a win for the Tenth Amendment.

He wrote: "Today's decision — approving virtually all of the Ninth Circuit's injunction against enforcement of the four challenged provisions of Arizona's law — deprives states of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign's territory people who have no right to be there."

Sure, the majority allowed section 2(b) to survive, and that is unfortunate, particularly if you live in Arizona or are passing through and happen to speak English with a Spanish accent (or speak no English at all), or if your skin boasts more melanin than that of the average Anglo.

However, the majority is allowing the injunction to be lifted on 1070 only on the very narrow basis that it does not violate the federal immigration scheme and will only involve a phone call to U.S. Immigration and Customs Enforcement to determine an individual's immigration status during a lawful stop.

That's a phone call many officers already have been making voluntarily, by the way. The difference with 1070 is that such an inquiry will be mandatory, with the possible penalty being lawsuits filed by ticked-off nativists against law enforcement agencies.

Under 1070, this inquiry to ICE is supposed to occur only when an officer has "reasonable suspicion" that an individual he or she has stopped is "unlawfully present" in the country.

Somehow, an officer is supposed to achieve this without unreasonably prolonging the detention of the stopped individual.

The DHS since has announced that it will not assign more agents to answer phone calls from Arizona, nor will it respond to inquiries that do not mesh with its enforcement guidelines, guidelines that prioritize the detention and removal of "criminal aliens."

Many immigration advocates insist that the DHS' prioritization policy is hooey. Otherwise, how would the Obama administration have been able to deport nearly 1.5 million people in three and a half years?

This may be true. Still, this news out of the DHS should give some pause to officers expected to enforce 1070.

In a press conference following the court's decision on Monday, American Civil Liberties Union national executive director Anthony Romero asserted that the lifting of the injunction against 2(b) is "an invitation to racial profiling."

Ask any cop you know and he'll tell you that within a couple of minutes of driving behind you, he can find a reason to pull you over. And once you're pulled over or stopped on foot, it's only a hop, skip, and a jump to an inquiry about your nationality.

In this sense, the court's decision truly is as "troubling" as Romero characterized it for the media. As you read the majority's opinion, there are moments that you wish Justice Kennedy and his colleagues were neatly ensconced in one of those carnival dunk tanks with a basket of baseballs at the ready.

For instance, Kennedy acknowledges that "officers must make an inquiry even in cases where it seems unlikely the Attorney General would have the alien removed."

His example of someone unlikely to be removed? "[A]n alien [who] is an elderly veteran with significant and longstanding ties to the community."

So, uh, keep abuelo in the attic, mami, otherwise he might get hassled by la policía.

With that one passage, the court acknowledged the racial profiling aspect of SB 1070. The bad news is, the majority let 2(b) slide anyway.

The good news is that it kept the door open to challenges to 1070 on grounds that it violates the Constitution's Fourth Amendment, which prohibits unreasonable search and seizure, and the Fourteenth Amendment's implied prohibition against racial profiling


"This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect," Kennedy wrote, in what reads like an invitation to 1070's opponents.

Fortunately, the white hats won't wait for 1070's injunction to be formally lifted, a process that may take three or four more weeks.

In that time, the ACLU and other groups suing Arizona in a separate case, Friendly House v. Whiting, have signaled that they will petition Judge Bolton to maintain an injunction against 2(b).

As I discussed in a blog post following the oral arguments over 1070 ("SB 1070 and a Ray of Hope," April 26), the plaintiffs in Friendly House already asked Bolton for an injunction against 2(b) on constitutional issues other than preemption, the grounds upon which Kennedy and the majority decided Arizona v. United States. (That is, federal immigration law trumps state law.)

Bolton denied the request but said she did so only because she'd already issued injunctions on the same provisions based on her finding that Arizona's law was superseded by federal immigration statutes.

The issue was moot for the moment. Bolton stated that she would not "engage in a full preliminary injunction analysis" of the Fourth Amendment claims. 

"[T]here appear to be substantial questions as to whether subsection 2(b) would withstand a challenge under the Fourth Amendment," Bolton wrote in an October 2010 order. "And some of the facts supplied . . . suggest that plaintiffs could demonstrate a likelihood of success on the merits of this claim."

During the same news conference where the ACLU's Romero spoke, the National Immigration Law Center's Marielena Hincapie, whose organization also is a plaintiff in Friendly House, made a promise that I hope she can keep.

"We will be moving in the next days to ask the court not to lift the injunction based on our other constitutional arguments," Hincapie averred, adding, "We believe Judge Bolton will continue blocking section 2(b) from going into effect."

And if Bolton doesn't do as Hincapie anticipates, the ACLU has amassed an $8.7 million war chest to battle 1070 in Arizona and the copycats it's spawned in other states.

And Brewer thinks this is a big win for her side?

Only in the sense that, temporarily, some cops in Sand Land may racially profile more than they already do, which is a lot if they're deputies from the Maricopa County Sheriff's Office.

Fear and racial profiling always have been what 1070 is about. By implementing a policy of "attrition through enforcement," the nativist element that currently rules the Arizona GOP sought a kind of ethnic cleansing for the state, believing it would purge this place of its Hispanic population, or at least enough of it to stave off that demographic's inevitable appropriation of political power.

Political expediency, bigotry, and the profit motive of the private prison industry propelled our political leaders to seek unprecedented immigration powers for the states.

On the whole, they were denied when the Supremes kicked to the curb three provisions of 1070 even more egregious than 2(b), provisions I dealt with in a post-decision blog item ("SB 1070 Ruling: States Do Not Have Carte Blanche," June 25).

For the 1070 clones in other states, like Alabama, Georgia, and elsewhere, the decision does not bode well.

Law professors Jack Chin and Marc Miller, of the University of California-Davis and the University of Arizona, respectively, wrote in a joint analysis of the ruling that it could sound the "death knell" for "local legislative immigration innovations."

If anything, Brewer and her fellow nativist slugs remind me of that classic scene from Monty Python and the Holy Grail where King Arthur bests the Black Knight, cutting off both of his arms.

When the knight continues to fight, Arthur cries, "Look, you stupid bastard, you've got no arms left."

To which the knight replies, "It's just a flesh wound."

And that's what Brewer and the other Mexican-haters think they've sustained, a flesh wound.

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