Feathered Bastard

SB 1070, SCOTUS, Friendly House, and a Ray of Hope

There's one general conclusion I have after reading and re-reading the transcript of Wednesday's oral argument before the U.S. Supreme Court over Senate Bill 1070: Latinos and their allies cannot rely on the federal government or the courts for a long term solution to the overt bigotry that spawned SB 1070.

Ultimately, any solution will be a political one. What's needed is the attainment of raw political power. Because if Latinos are represented in this state's political hierarchy in a manner consistent with their being one-third of the population, we will be able to repeal 1070 and beat down its advocates.

See images from the SB 1070 protest in downtown Phoenix. 

I say this because the consensus among pundits, reporters and legal experts of today's oral argument is that section 2(b) of the law -- the "breathing while brown" section -- likely will be green-lighted by the Supremes. That's the part requiring cops to check immigration status for "any lawful stop, detention or arrest" where "reasonable suspicion" exists that a person is unlawfully present.

Based on questions asked by the justices during the hearing, it's also anticipated that section 6 will be un-enjoined. That section allows a police officer to arrest someone without a warrant if he or she has probable cause to believe that, "The person to be arrested has committed any public offense that makes the person removable from the United States." 

These sections were crafted by 1070's author, Kansas Secretary of State Kris Kobach, and pimped by recalled former state Senate President Russell Pearce for the express intent of profiling Latinos. 

But because the justices are looking at 1070 through the narrow prism of whether or not these sections are preempted by federal immigration law, it's expected that the injunctions on 2(b) and 6 will be lifted.

Sections 3 and 5(c) may remain enjoined. The first makes it a state crime for an alien not to register and not carry the proper immigration documents (it's already a federal crime). The second makes it a crime for anyone in the country unlawfully to seek work. 

Getting through the transcript is a depressing slog. But there is some hope. And that is conveyed, oddly, by Chief Justice John Roberts, not long after U.S. Solicitor General Donald Verrilli stands before him.

"No part of your argument has to do with racial or ethnic profiling, does it?" Roberts asks, later confirming, "Okay, so this is not a case about ethnic profiling."

See, the government's argument is this: Immigration law is our thing, and the states can't touch it unless we give them a permission slip, through information sharing programs like Secure Communities, wherein everyone booked into a jail has their immigration status checked. 

The Supremes didn't seem to be buying that argument, with Justice Sonia Sotomayor now famously telling Virrili, in regards to 2(b), "You can see it's not selling very well -- why don't you try to come up with something else?"

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Stephen is a former staff writer and columnist at Phoenix New Times.
Contact: Stephen Lemons