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.
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?"
Such comments are particularly frustrating because if states are allowed to come up with their own immigration enforcement schemes, we could, hypothetically, be looking at 50 different enforcement schemes.
It would make more sense, considering that immigration law is the purview of the federal government, for the feds to maintain exclusive control over the enforcement of immigration law.
But the feds have already muddied the water with programs such as Secure Communities and the ill-fated 287(g) program, which trained local cops to enforce federal immigration statutes.
In particular, 287(g) opened the door for bad players like Sheriff Joe Arpaio to go rogue with his immigration sweeps in Hispanic neighborhoods. These, ironically, became the pretext for the U.S. Department of Justice to investigate Arpaio for racial profiling.
So now the feds are in the difficult position of arguing that, yes, local law enforcement can enforce federal immigration law, but only when we say so. Not a particularly convincing line of reasoning.
However, there is a more powerful argument against section 2(b) , which is that it violates the Fourth Amendment's prohibition against unreasonable search and seizure because it will lengthen the time someone is detained.
There could also be 14th Amendment claims, specifically related to racial profiling, though this would likely require gathering evidence, such as has been gathered in the ACLU's racial profiling case against Sheriff Joe, Melendres v. Arpaio.
Fourth Amendment arguments are part of a separate 1070 lawsuit, Friendly House v. Whiting, brought by the ACLU and MALDEF. This case is before Judge Susan R. Bolton, the judge who enjoined portions of 1070 on the grounds of federal preemption in U.S. v. Arizona.
Lawyer's for the plaintiffs in Friendly House have asked for parts of 1070 to be enjoined based on violations of Fourth Amendment. In an October 8, 2010 order, Bolton said the matter was moot because she had already enjoined the sections of the law in question based on federal preemption in U.S. v. Arizona.
But Bolton acknowledged that there were valid Fourth Amendment claims. In her order, she wrote:
"Since the Court previously found that the United States was likely to succeed on its challenge to this provision on preemption grounds, rendering Plaintiffs' Motion for Preliminary Injunction moot, the Court does not engage in a full preliminary injunction analysis on Fourth Amendment grounds.
"However, there appear to be substantial questions as to whether Subsection 2(B) would withstand a challenge under the Fourth Amendment, and some of the facts supplied, both in this case and the related cases, suggest that Plaintiffs could demonstrate a likelihood of success on the merits of this claim."
The ACLU of Arizona's legal director Dan Pochoda tells me that the ACLU could again file a motion to enjoin 2(b) on Fourth and 14th Amendment grounds if the Supremes lift that section's injunction.
"We believe [SB 1070] seriously infringes on these fundamental rights, including the Fourth and 14th Amendments," Pochoda explains. "Those were not in front of the court today, and the litigation in Friendly House will continue, and challenges based on the Fourth and Fourteenth Amendments will be brought."
(I should also point out that Friendly House scored two additional injunctions from Bolton on two sections of 1070 dealing with day laborers. Those sections were not at issue in Supreme Court's review, so the injunctions stand.)
Does the strong possibility of a mixed decision on 1070, with injunctions on the most troubling parts of the statute lifted, mean that the feds should never have brought the complaint, or that they should have challenged 1070 on other grounds?
I'd say the fact that the U.S. government sued Arizona over 1070 sent a broad message that the feds did not like what was going on in Sand Land. Preemption may have been their strongest argument to obtain injunctions as quickly as they did. Remember, Bolton enjoined one day before the measure was enacted. (Her injunctions were later upheld by the Ninth Circuit Court of Appeals.)
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Bolton's action was crucial. It ameliorated the political acrimony in Arizona, and bought the anti-1070 forces time to mount a push-back. Two years later, Russell Pearce no longer has a gig in the legislature, and there are promising signs of further change in November.
That time also has allowed the business community a long, hard look at the unintended consequences of 1070 and copycat laws in other states. Second thoughts are the order of the day.
Perhaps most importantly, the battle over 1070 lit a fire under the Latino community, which is energized, and organizing as never before. If 2(b) is allowed to go into effect, I suspect it will further enhance the backlash, and the need for Latinos to fight back.
Am I optimistic? Resigned is more like it. The nativists have engaged Latinos, civil libertarians and all those who strive for the eradication of bigotry in a war of political and legal attrition. And there's no choice but to fight till the bitter end.