It was the Obama administration’s best chance to make its case against Arizona’s SB 1070 and anti-immigrant state laws like it. But the U.S. government hobbled out of the Supreme Court badly bruised after arguing its case yesterday. In an aggressive line of questioning the federal government got trapped: with federal immigration enforcement programs like Secure Communities and 287(g) effectively doing the same thing that SB 1070 does by making local cops act like immigration agents, the government had trouble convincing any of the justices that Arizona had done much wrong.
The High Court looked at four key portions of Arizona’s broad law, including the “papers please” provision that requires law enforcement officers to question anyone they suspect is undocumented and demand they produce proof of their immigration status. The law also authorizes warrantless arrests of anyone cops believed might be an undocumented and turns the very fact of being an undocumented immigrant into a crime punishable by up to a month in jail. And it made it illegal for undocumented immigrants to solicit, apply for or perform work and prohibited Arizona drivers from transporting undocumented immigrants.
While some justices expressed concerns about the constitutionality of other parts of the law, most of the conversation centered around the “papers please” provision. And if the justices’ line of questioning is any indication, portions of SB 1070 may stand.
When Arizona Gov. Jan Brewer signed SB 1070 into law two years ago, catapulting her state and the rest of the country into a period of rancorous debate about immigration enforcement, it changed the immigrant rights landscape. Arizona’s law was a major victory for immigration restrictionists, who have since pushed copycat bills as the cornerstone of a strategy that they call “enforcement through attrition” through which laws make life so unlivable for undocumented immigrants that they’ll pick up and leave.
SB 1070 marked a key turning point in the national immigration debate, but yesterday’s hearing focused on a very narrow, and colorblind legal argument.
A Fine Line
Arguments yesterday centered on one primary question: Do the states have the power to make immigration enforcement decisions on their own? The federal government says, absolutely not. In Solicitor General Donald B. Verrilli’s view, the federal government alone has the authority over immigration law and enforcement and Arizona’s law preempts that authority by placing the work of immigration enforcement into state hands.
Arizona basically responded by saying they’re just trying to help. The law, Arizona’s attorney Paul D. Clement said, doesn’t preempt federal law, it supports it. In fact, he offered, Arizona was just doing what the federal government already asks states to do. Every single day, the federal government asks states to enforce immigration law through a set of federal programs that deputize or authorize local cops to inquire about immigration status.
“The federal government doesn’t like this statute, but they are very proud of their Secure Communities program,” Clement said.
Secure Communities is a program through which the federal government checks the immigration status of anyone booked into a local jail.
Chief Justice John Roberts seemed to agree. Roberts said that Arizona’s law did not amount to the state usurping federal powers because ultimately, the federal government gets to decide who to deport. “It is not an effort to enforce federal law. It is an effort to let you know about violations of federal law,” he said. “Whether or not to enforce them is still entirely up to you.”
“It seems to me the federal government just doesn’t want to know who is here illegally,” he told Verrilli.
While programs like Secure Communities and 287(g), which deputizes local cops as immigration agents, raise serious civil rights concerns, the difference is night and day between the federal government’s active decision to enter into agreements with localities, and state enforcement regimes, said Nora Preciado, a staff attorney at the National Immigration Law Center. NILC, along with a coalition of civil rights groups including MALDEF and the ACLU, has filed a separate suit against SB 1070.
“The point is that it’s exactly unlike an 287(g) agreement or Secure Communities program,” Preciado said. “Arizona’s bill is nothing like that because it’s not authorized in any way, shape or form.”
But some immigrant rights advocates say the line is actually not so clear. “The administration is talking out of both sides of its mouth,” said Carlos Garcia, an organizer with the Phoenix-based immigrant rights group Puente, which has organized tirelessly against Brewer and Maricopa County Sheriff Joe Arpaio’s anti-immigrant charge. “They’re contradicting themselves by suing Arizona on 1070 and then continuing to deport people from Joe Arpaio’s jail. The federal programs cause the same harm” as SB 1070.
“The preemption questions will be talked about in this hearing,” Garcia said. “But to us, SB 1070 is already being implemented here and across the country.”
It’s an awkward position for the government to be in: Arizona’s defenders and its sharpest critics issuing parallel critiques of the federal government’s stance, even if with opposite goals in mind.
Even Justice Sonia Sotomayor, who among the justices was the most vocally skeptical of Arizona’s defense of the law, seemed exacerbated by Verrilli’s efforts to draw a distinction between federal enforcement programs that use state law enforcement and SB 1070.
“You can see it’s not selling very well,” she said. “Why don’t you try to come up with something else?”
Avoid Race At All Costs
The government worked quite hard yesterday to avoid the most obvious available argument besides preemption—the racial discrimination caused by the law. Allowing police officers to question anyone they merely suspect is undocumented raises a pointed question: what exactly does an undocumented immigrant look like?
Activists in Arizona say that SB 1070 has already subjected people of color to discrimination and racial profiling. In April of 2010, shortly after SB 1070 was signed into law, Arizona resident Jim Shee, a U.S. citizen of Spanish and Chinese lineage was stopped two times by police officers who asked for his papers. Shee is now a plaintiff in the civil rights coalition’s lawsuit against Arizona, which charges that SB 1070 violates the Constitution because it encourages racial profiling.
“I’m part of this lawsuit because racial profiling is wrong and I don’t think that people should be targeted, pulled over and questioned because of the color of their skin,” Shee said in a statement yesterday.
But yesterday, the federal government stuck to its preemption argument tightly. “We are not making an allegation of racial profiling,” Verrilli said bluntly.
“Before you get into what the case is about,” Chief Justice John Roberts said, interrupting Verrilli before he could begin, “I’d like to clear up at the outset what it’s not about. No part of your argument has to do with racial or ethnic profiling, does it?”
“That’s correct,” Verrilli said, seemingly anxious to move on.
The government’s desire to avoid claims about racial discrimination has strategic legal rationale. This court is among the most conservative in years on racial justice issues and the government’s legal strategists believed the preemption grounds provided them the clearest path to an injunction.
But the racial-blindless of the government’s case may also have been a political decision. “Especially in an election year, they didn’t want a racially charged case in the public eye,” said Kevin Johnson, Dean of UC Davis School of Law. “The federal government didn’t want to be perceived as playing the so called race card and there was a conscious decision to avoid racial profiling.”
The federal government may have also kept race out of the courtroom because the framework of Arizona’s law arguably mirrors the enforcement framework of federal law, immigration experts said. Immigration advocates have long argued that Immigration and Customs Enforcement and Border Patrol agents act on circumstance and suspicion, and engage in policing that relies on profiling.
Omar Jadwat, a senior staff attorney with the ACLU’s Immigrant Rights Project was disappointed with Verrilli’s nervous silence on racial discrimination. “Among the discouraging things, I thought that it was unfortunate that early on in government’s argument there was a concession that they were taking racial profiling off the table.”
Racial profiling did eventually enter the discussion in the court, even if not explicitly. Justice Sotomayor suggested artfully, without actually saying as much, that were she in a post-SB 1070 Arizona with a less recognizable name, she might be at risk of being picked up.
“Today, if you use the names ‘Sonia Sotomayor,’” she said, “they would probably figure out I was a citizen.”
What Comes Next
The justices are expected to release a decision this summer and it seems likely from their line of questions that at least part of the bill will be upheld. That said, there were some signs that the court would reject some of the law’s provisions, or at least significantly restrict the scope of that’s allowed. Even Roberts seemed skeptical about the constitutionality of the provision which makes it a state crime for undocumented immigrants to try apply for or perform paid work.
“Now, that does seem to expand beyond the federal government’s determination about the types of sanctions that should govern the employment relationship,” he said.
Justice Elena Kagan recused herself from the case because she was involved with it when she worked as Obama’s Solicitor General. Her absence leaves a hole on the liberal side of the court and it makes more likely that parts of the law may stand. Without a ninth Justice, the court could split 4-4, in which case the lower court’s injunction against SB 1070 will stand. However, in that case, the court’s decision would have no effect on the five other states that have passed similar bills.
Meanwhile, the civil rights coalition has sued Georgia, South Carolina, Utah, Indiana and Alabama over their copycat laws, and most of those bills have been blocked pending the SB 1070 decision. The ruling, even a narrow one, will ripple beyond Arizona. However the decision is crafted will have implications on pieces of those bills as well.
In Arizona though, people on the ground are not waiting for the court, said Carlos Garcia, the Pheonix organizer. “No matter what happens in the court, we’ll keep fighting on all fronts.”