UPDATED 12:30pm EST: Today’s Supreme Court ruling in the SB 1070 case was only about federal preemption. The federal government did not challenge the law on racial profiling grounds, which immigrant rights advocates say are their central concerns. The 5-3 decision upholding section 2(b) of the law, the “show me your papers” provision, was, in fact, the court’s more liberal decision. Kennedy was joined by Justices Roberts, Ginsburg, Breyer and Sotomayor. Justices Scalia, Alito and Thomas issued separate opinions. Kagan recused herself from the case. (Scroll to the bottom to read more of the update.)
In a long awaited decision, the Supreme Court today upheld the most controversial part of Arizona’s SB 1070, the “show me your papers” provision. The decision allows Arizona law enforcement officers to question anyone they suspect may be undocumented. Immigrants in Arizona may now face broad targeting by police and advocates warn that Latinos in general are likely to be profiled on the basis of their race.
The court considered whether states have the power to pass their own immigration laws. The federal government argued that only the federal government, not the states, can make immigration laws. Arizona retorted that SB 1070 was simply intended to help the federal government to conduct the work of immigration enforcement and does not interfere with federal law. The court considered four provisions of the law and upheld a lower courts injunction of three of the provisions, amounting to a partially victory for the federal government and immigrant right groups. But the court ruled to overturn a lower court’s injunction of section 2(b) of the law, which requires cops to ask about immigration status.
“The status checks [do] not interfere with the federal immigration scheme. Consultation between federal and state officials is an important feature of the immigration system,” wrote Justice Kennedy, for the court’s majority.
The three other provisions on the table were struck down on the grounds that they preempt federal law. Those provisions would have made it a state crime to be an undocumented immigrant on Arizona soil, allowed police to conduct a warrantless arrest of anyone they suspect could be deported and criminalized work for undocumented immigrants.
Kevin Johnson is the dean of the UC Davis Law School. “It’s important to remember that the court struck down three of the four provisions before the court,” Johnson told Colorlines.com. “There was only one provision upheld, the one that requires local police to stop people they have a reasonable suspicion they may be undocumented. It’s not an across the board victory for the US government or for Arizona.”
Johnson added that the decision will have major implications for the rest of the country. “Other states have laws with provisions like 2(b). Those are all percolating in federal courts and this decision will have an impact on those state laws.”
Alabama, South Carolina, Georgia and Utah all passed laws in the wake of SB 1070 that include sections like 2(b). Nearly two dozen other states have considered similar bills.
The Supreme Court remanded the case back to the 9th Circuit Court of Appeals, which will be tasked with lifting the injunction against the “show me your papers” provision. The provision will not go into effect until that happens.
The court’s was clear that additional constitutional concerns may arise once provision is actually enacted, which opens the door for more litigation against the law.
“This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect,” Kennedy wrote.
Other cases are already in the works to challenge SB 1070. Nora Preciado is an attorney with the National Immigrant Law Center, which along with the ACLU and MALDEF has sued the state of Arizona on civil rights grounds.
“There is certainly space to continue challenging the law,” Preciado told Colorlines.com. “It’s really important that the court recognized that there may be constitutional problems when put in practice. They left open the possibility of other challenges once the provision is applied.”
Check back today and tomorrow for more analysis on what the SB 1070 decision means for Arizona and the country.
Update 12:30 EST cont.: The court has clearly left open the possibility that once the law goes into effect, it could be challenged on other constitutional grounds. And some advocates say that the federal government set itself up for this loss on section 2(b) by failing to challenge the law on civil rights grounds. I’ve written about this before and will be writing about this more later today and tomorrow. But the basic point is that the “show me your papers” provision will become problematic in its implementation, because there’s no way for cops to know who’s undocumented without profiling on the basis of race.
The Supreme Court justified its decision to reject the lower court’s injunction of section 2(b) by noting that the federal government regularly asks local police to participate in immigration enforcement. The decision notes that the provision will pass constitutional muster as long as it is implemented in a fashion that does not result in clear constitutional violations, like extended periods of detention without cause. The court notes that the provision is constitutional as long as local police only check a suspect’s immigration status during a lawful stop or arrest. It’s up to the lower court to issue a new decision that binds Arizona’s cops to this kind of narrow application of the provision, but barring an injunction of the law on other grounds, Arizona’s cops will soon be allowed to ask those they stop about their immigration status