If right-wingers such as Arizona's clueless, incompetent Governor Jan Brewer had actually read today's U.S. Supreme Court's decision on Senate Bill 1070, they would not be so quick to issue press releases spinning the court's 5-3 ruling as a victory for xenophobes, or even for the idea of some sort of immigration federalism, where states are allowed to concoct their own immigration enforcement schemes.
In fact, the court did not endorse a 50-state immigration free-for-all. Rather, it re-affirmed the federal government's "broad, undoubted power" over immigration, tossing three sections of 1070 as preempted by federal authority, while lifting a lower court's injunction on section 2(b), the notorious "papers please" section of the statute.
Along these lines, law professor Peter Spiro, writing on SCOTUSBlog.com, called the decision "mostly a victory for SB 1070's opponents," predicting that it will "take a lot of wind out of restrictionist sails at the state level."
Indeed, 2(b), which requires local law enforcement to inquire about someone's status after a stop, was merely allowed to limp along for the moment, until it's almost inevitably killed off later on other grounds.
Specifically, the court's majority stated that, "This opinion does not foreclose other preemption and constitutional challenges."
An invitation, of sorts. And one that will be taken up, tout de suite.
In a press conference today in Washington, D.C. given by the ACLU and other stakeholders, speakers signaled that a challenge of section 2(b) on the grounds that it violates the U.S. Constitution's Fourth Amendment prohibition on unreasonable searches and seizures, as well as the 14th Amendment ban on racial profiling, is on its way. This, in the ACLU's lawsuit Friendly House v. Whiting.
During the press event, Marielena Hincapie, executive director of the National Immigration Law Center, pointed out that technically it would take an estimated three to four weeks for the injunction against 2(b), issued on August 28, 2010 by district court Judge Susan R. Bolton, to be lifted. In that time, she promised, NILW, ACLU and other plaintiffs would act.
"In the Friendly House case, we will be moving in the next days to ask the court not to lift the injunction based on our other constitutional arguments," Hincapie stated, adding, "We believe Judge Bolton will continue blocking the section 2(b) from going into effect."
Even if Bolton does not agree to block 2(b) on other grounds, litigation in Arizona and other affected states will continue. ACLU executive director Anthony Romero announced that his organization had amassed an $8.7 million war chest to battle 2(b) and any copycat provisions extant or forming in other states.
Romero characterized the ruling as "deeply troubling," and said that the Supreme Court had "kicked the can down the road" by allowing 2(b) to stand while awaiting other challenges.
In the meantime, 2(b) remained "an invitation to racial profiling," he said.
He also called the court "out of touch" with reality. Certainly, it's difficult to dispute this description, while perusing the court's ruling on section 2(b).
Passages like the following are guaranteed to make you want to head-butt the nearest wall:
"[Local officers] must make an inquiry [into immigration status] even in cases where it seems unlikely that the Attorney General would have the alien removed. That might be the case, for example, when the alien is an elderly veteran with significant and longstanding ties to the community."
Which, incredibly, almost reads like a green light to inquire after the immigration papers of old Latino vets.
The court's opinion acknowledges that, "It is true that 2(b) does not allow state officers to consider federal enforcement priorities in deciding whether to contact ICE about someone they have detained."
And yet, the court finds that the federal immigration system allows for "a policy requiring state officials to contact ICE as a routine matter."
Sadly, that statement is correct, as the U.S. Department of Homeland Security's "Secure Communities" program makes sure those booked into local, cooperating jails have their immigration status checked.
But the Supreme Court sticks its collective head in the sand when it finds that prolonged detention for Latinos will not be an inevitable consequence of lifting the injunction against 2(b).
This, while stating that, "Detaining individuals solely to verify their immigration status would raise constitutional concerns."
I'm reminded of the admission by a sheriff's deputy in the ACLU's Melendres v. Arpaio case that just by following any vehicle for a couple of minutes, probable cause can be established to pull that vehicle over.
In other words, an excuse to hassle Latinos can always be found. And with section 2(b) as backup, you can bet that excuse will often be found.
As frustrating as this realization is for those who oppose 1070, it's worth noting that the court suggests it may be improper for an officer to prolong a stop "unless the person continues to be suspected of some crime for which he may be detained by state officers."
The court mentions jaywalking as an offense where prolonging the stop might not be reasonable.
However, I know of cases where jaywalking was used as a pretext to inquire into immigration status. On a trip to Nogales, Sonora, one of the young men I met at an aid station had been deported after having been initially stopped for -- you guessed it -- jaywalking.
Still, nativists cannot take much heart from a decision that narrowly finds local cops can place a phone call to U.S. Immigration and Customs Enforcement during a lawful stop.
SB 1070 was designed to go further, essentially criminalizing illegal presence, allowing cops to make warrantless arrests of aliens suspected of being removable, and imposing state penalties that either paralleled or went further than existing federal statutes.
Yet, the court smacked down these provisions one after the other.
In the case of section 3, which establishes a state crime for aliens not having their documents with them, as required by federal statute, the court blasts the logic (often heard during the debates over 1070) that Arizona law simply "mirrored" federal law and therefore was OK.
The court writes:
"Arizona contends that [section 3] can survive preemption because the provision has the same aim as federal law and adopts its substantive standards. This argument not only ignores the basic premise of field preemption--that States may not enter, in any respect, an area the Federal Government has reserved for itself--but also is unpersuasive on its own terms. Permitting the State to impose its own penalties for the federal offenses here would conflict withthe careful framework Congress adopted."
In section 5(c), where Arizona made it illegal for the undocumented to seek or do work, the state enacted "a state criminal prohibition where no federal counterpart exists," and so, the section is pre-empted by federal law.
Section 6 sought to establish the warrantless arrests mentioned above. It too is pre-empted, because, "As a general rule, it is not a crime for a removable alien to remain present in the United States."
(What a lovely riposte to the nativist mantra, "What is it about the word illegal that you don't understand?")
The court emphasized the power of the executive branch to "exercise discretion" on whether or not to "issue a warrant for an alien's arrest and detention `pending a decision on whether the alien is to be removed from the United States.'"
You know, kind of like the way President Obama recently decided to exercise "prosecutorial discretion" when it comes to those young men and women who would benefit from the DREAM Act.
The court maintains that states are "precluded from regulating conduct" in the field of immigration, that they are only allowed to act in the "limited circumstances" specified by federal law.
We Believe Local Journalism is Critical to the Life of a City
Engaging with our readers is essential to Phoenix New Times's mission. Make a financial contribution or sign up for a newsletter, and help us keep telling Phoenix's stories with no paywalls.
Support Our Journalism
Does that sound like a "victory" for the side Governor Brewer and recalled state Senate President Russell Pearce are playing on?
That's because it isn't. Rather, these attempts to allow states to enforce federal immigration law and to cook up different statutes meant to drive out the undocumented, have been rebuffed.
The only reason section 2(b) has been allowed to stand, for the moment, is because the court narrowly found that, "it would be inappropriate to assume 2(b) will be construed in a way that creates a conflict with federal law."
And given that thin thread of survival, it's safe to say that SB 1070 is destined for the same ash bin where Russell Pearce's political career now sits.