Feathered Bastard

SB 1070: Supreme Court Upholds "Papers Please" Section, Invalidates Others

SCOTUSBlog.com is reporting that Section 2(b) of Arizona's immigration law, Senate Bill 1070, has been upheld by the U.S. Supreme Court as not pre-empted by federal immigration law.

Of the court's decision, SCOTISBlog writes, "It was improper for the lower courts to enjoin section 2(b), which requires police officers to check the legal status of anyone arrested for any crime before they can be released."

Sections 3, 5(c), 6, were declared pre-empted by federal law.

Significantly, SCOTUSBlog writes that the ruling "does not foreclose other preemption and constitutional challenges to the law."

Indeed the ACLU has promised to seek an injuction of section 2(b) on 4th and 14th Amendment grounds, in the case of it being upheld.

The court writes that,

"The United States has established that §§3, 5(C), and 6of S. B. 1070 are preempted. It was improper, however, to enjoin §2(B) before the state courts had an opportunity to construe it and without some showing that enforcement of the provision in fact conflicts with federal immigration law and its objectives.The judgment of the Court of Appeals for the Ninth Circuit is affirmed in part and reversed in part. The case is remanded for further proceedings consistent with this opinion."

Justices Antonin Scalia, Clarence Thomas, and Samuel Alito have each dissented in part and concurred in part.

SCOTUSBlog opines, "The Court's decision on the 'show your papers' provision strongly suggests it will have to be read narrowly to survive."

It adds, "On net, the #SB1070 decision is a significant win for the Obama Administration. It got almost everything it wanted."

You can read the opinion, here. I'll be reading it, as well, and will add more after I've read it.

Governor Jan Brewer is spinning this as a win, calling the decision "a victory for the rule of law."

Her statement adds, "After more than two years of legal challenges, the heart of SB 1070 can now be implemented in accordance with the U.S. Constitution."

Seems like a stretch, especially if the ACLU can score a new injunction on the "papers please" section.

UPDATE 9:15 AM: I just received this announcement below from the ACLU regarding its reaction to the law. The ACLU also has a press conference scheduled for 1 p.m., Eastern Time, which I'll follow. 

What the ACLU has to say is significant as its 1070 suit, Friendly House v. Whiting, challenges the law on 4th and 14th Amendment grounds, among others. The case is before Judge Susan R. Bolton, the same judge who enjoined 1070 on July 28, 2010.

The ACLU previously has asked Bolton to enjoin on 4th and 14th Amendment grounds.She denied that request, saying that she had already enjoined on pre-emption, but she seemed to agree there were 4th Amendment problems with the law and left the door open for the ACLU to come back and ask for an injunction again, if the Supreme Court ruled against her on pre-emption.

The U.S. Supreme Court decision that upheld a key provision of Arizona's draconian anti-immigrant law will lead to racial profiling and discrimination, ACLU Executive Director Anthony D. Romero warned today.

At the same time, Romero said he was heartened by the fact that the court did not shut the door on future challenges to the law.

"We are not done in Arizona and will continue the battle against discriminatory laws like these that encourage racial profiling and undermine the constitutional guarantee of equal protection," Romero said. "Be it in the courts or in state legislatures, we will aggressively take on these laws and blunt the effects of this miscarriage of justice. When local police can stop and detain anyone they perceive as 'foreign' because of their skin color, their accent or their surname, it is a watershed moment for civil rights."

Today's decision struck down three provisions of Arizona's law, but upheld the notorious "show me your papers" provision, which requires illegal detentions and systematic racial profiling by local police. The court rejected the federal government's argument that Arizona overstepped its power as a state. In a separate suit, the ACLU, along with a coalition of advocacy groups, will continue the fight to block the Arizona law as a violation of core constitutional rights, Romero said.

"The Supreme Court's decision to uphold the "show me your papers" provision for now will lead to widespread civil rights violations until it is reviewed again and possibly struck down," Romero said. "Today's decision is an invitation for more litigation, while civil rights are inevitably violated."

In anticipation of the ruling, Romero announced the ACLU has amassed an $8.77 million "war chest" to aggressively battle any state's attempts to enact copycat legislation while also fighting the "corrosive effects" of existing anti-immigrant laws in Arizona and five other states.

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