SB 1070 Ruling: States Do Not Have Carte Blanche in Immigration Sphere

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, 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.