The Supreme Court yesterday issued a long awaited decision on Arizona’s SB 1070, the anti-immigration law that shook that state and the rest of the country after its passage in 2010. The ruling struck down three of the law’s core provisions on the grounds that they preempt federal law, but upheld, at least for now, the most notorious part of the law: requiring cops to ask suspected immigrants about their citizenship status.
District Court Judge Susan Bolton will lift her injunction of the "show me your papers" provision and direct Ariz. on implementing the law.
Though the ruling significantly narrows SB 1070, the court’s acceptance of the "show me your papers" provision opens the door for other states to pass narrowly written copycat laws and validates similarly crafted provisions in four states that have already followed Arizona’s lead.
The Obama administration did not challenge SB 1070 on civil rights grounds and, thus, the court did not rule on that set of questions. In the majority opinion, however, the justices made clear that they may be prepared to hear such a challenge in the future, based on the manner in which the law is implemented.
Immediately following the decision yesterday, Attorney General Eric Holder released a statement asserting his commitment to preventing racial profiling. "As the Court itself recognized, Section 2 is not a license to engage in racial profiling and I want to assure communities around this country that the Department of Justice will continue to vigorously enforce federal prohibitions against racial and ethnic discrimination."
Nonetheless, the legal saga over SB 1070 thus far–and no one believes the wrangling is over–raises familiar concerns about the Obama administration’s own immigration enforcement programs. It also begs questions about the government’s colorblind legal challenge to a law that, at its core, is built to target people who look like immigrants.
Narrow Challenge, Narrow Ruling
In many ways, the decision is as narrow and restrictive as the law’s opponents could have hoped, considering the content of the government’s legal challenge. "We are not making an allegation of racial profiling," Solicitor General Donald Verrilli said plainly during April’s oral arguments before the court.
Rather, the government’s challenge was based solely on arguments about the balance of state and federal power to make and enforce immigration laws. Arizona argued that its law does not infringe on federal authority, but actually aligns with it.
In a majority decision by Justice Kennedy, who was joined by Justices Roberts, Ginsberg, Breyer and Sotomayor, the Supreme Court upheld a lower court’s decision to block parts of the bill that authorized police to make warrantless arrests of anyone they believe is deportable, made it a misdemeanor for undocumented immigrants to be present on Arizona soil and criminalized undocumented immigrants who look for work.
Justices Scalia, Thomas and Alito, the court’s most conservative Justices, all issued their own opinions. Scalia and Thomas would have allowed all four of the provisions to take effect, while Alito would have allowed all but the work-criminalization provision to become law. Justice Kagan recused herself from the case altogether.
Ultimately, all of the justices who opined on the case agreed that the "show me your papers" provision, section 2(b), should not be blocked–at least not based on the government’s arguments. The court ruled that the particular section of SB 1070 does not conflict with federal law, but rather aligns with it, as Arizona argued. The provision requires Arizona’s cops to attempt to determine the immigration status of anyone they stop in the course of routine policing if they have "reasonable suspicion" to believe that person is an undocumented immigrant.
Most legal experts see the decision as a narrow one that largely rebukes the law’s defenders. "It’s important to remember that the court struck down three of the four provisions before the court," said Kevin Johnson, the dean of the University of California Davis Law School. "There was only one provision upheld, the one that requires local police to stop people if they have a reasonable suspicion they may be undocumented. It’s not an across the board victory for the U.S. government or for Arizona."
But that remaining provision is perhaps the law’s central one, and when it goes into effect it’s likely to have a dramatic impact on the lives of immigrants and Latinos in Arizona.
Feds Can’t Have It Both Ways
In finding that the "show me your papers" provision does not preempt federal law, the Supreme Court noted that the federal government already asks and sometimes demands that local police partner with federal authorities.
"The status checks [do] not interfere with the federal immigration scheme," wrote Justice Kennedy, for the majority. "Consultation between federal and state officials is an important feature of the immigration system. Congress has made clear that no formal agreement or special training needs to be in place for state officers to ‘communicate with the [Federal Government] regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States.’ "
The federal government’s immigration enforcement strategies have relied increasingly on local police to do the work of detaining non-citizens. The court specifically noted a program that ICE operates: a 24-hour call line that provides local cops with information about immigration status. And federal programs like Secure Communities and the 287g both use state and local police and jails to identify and detain non-citizens. Secure Communities is Obama’s flagship immigration enforcement program and it now checks the immigration status of anyone booked into a local jail in almost every county in the country.
The federal government’s reliance on these partnerships is ultimately what doomed its arguments that 2(b) preempts federal law.
Even Justice Sotomayor, who was widely expected to be the skeptical of Arizona’s defense of the law, did not buy the government’s argument in court that there’s any real difference between the federally administered partnerships and section 2(b) of the Arizona law.
"You can see it’s not selling very well," Sotomayor said during April arguments in response to the solicitor general’s argument that section 2(b) it is different from other local-federal partnerships, in terms of usurping federal authority. "Why don’t you try to come up with something else?" Sotomayor joined the majority decision on Monday, letting the provision stand. Again, the justices were not asked to rule on a civil rights question with the provision.
Following the decision yesterday, the Obama administration announced that the 287g program would be suspended in Arizona and in any other state that enacts a law similar to SB 1070. Through the program, federal authorities deputize local cops to act as immigration agents. A Department of Homeland Security official told Colorlines.com that the program was no longer useful in states that have adopted immigration enforcement laws like SB1070.
The official confirmed that federal immigration authorities will now only respond to Arizona cops’ calls about undocumented immigrants in those cases that fit ICE’s priorities. But Arizona cops will nonetheless be able to stop and detain people at their own discretion, even if federal authorities decline to deport those who turn out to be undocumented immigrants.
Immigration advocates have long said that programs like 287g and Secure Communities wreak havoc in immigrant communities by allowing local police to decide who to target with immigration enforcement. And research finds that 287g agreements bring with them police racial profiling. Other studies find the same is true of the Secure Communities program. Last month, the New York Times editorial board joined these calls, noting that in its simultaneous defense of Secure Communities and assault on SB 1070, "The administration is trying to have it both ways, attacking local crackdowns on defenseless immigrants while entangling state and local police in the same cruel mission."
A Civil Rights Challenge?
Meanwhile, Latino community leaders in Arizona and the five other states with provisions similar to SB 1070s "show me your papers" provision are bracing themselves for widespread racial profiling. Section 2(b) requires cops to stop people they suspect to be undocumented; on what grounds is this suspicion founded if not on the basis of race?
While civil rights were not at issue in the case before the Supreme Court, the majority opinion was emphatic that "this opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect."
Justice Kennedy clarified that if the law "only requires state officers to conduct a status check during the course of an authorized, lawful detention…the provision likely would survive preemption." But, he wrote, "detaining individuals solely to verify their immigration status would raise constitutional concerns."
That means if Arizona cops ask people about their status only when acting within the confines of the law–which would preclude the use of racial profiling to decide who to stop–then the court says 2(b) will pass legal muster in the future. But as soon as the police begin stopping and detaining people simply because they think that person is an immigrant, or start detaining those without papers for extended periods of time, the court warns of other legal concerns.
Kennedy’s language was a clear message to civil rights groups that there could be room for more legal action once the law takes effect.
So why didn’t the administration bring a civil rights challenge in this case?
A generous reading of the government’s stony avoidance of civil rights is that most experts agree the current Supreme Court is unlikely to block any law on a racial justice claim unless plaintiffs can show measureable and intentional racial discrimination. By excluding profiling and unreasonable search and seizure arguments from its case, the government may have succeeded in blocking most of the law, while opening an avenue for civil rights groups to challenge 2(b) once its civil rights fallout can be measured.
A less generous reading is that the government could not credibly challenge a law on racial profiling grounds when its own, similar enforcement programs, such as Secure Communities and 287g, have been shown to have the same effect.
The American Civil Liberties Union, the Mexican American Legal and Education Fund, the National Immigrant Law Center, and a number of other groups have already filed a civil rights suit against Arizona, saying that SB 1070 will lead to racial profiling and unreasonable search and seizure in violation of the 4th and 14th Amendments.
The litigants in the civil rights suit, called Friendly House v. Whiting, say they are still deciding how to proceed with the case now that the decision has come down.
"There’s no doubt that we will continue to move forward," said Nora Preciado, an attorney with the National Immigrant Law Center. "The court said that the section of the law is not problematic in terms of preemption, but that was the government’s only argument against it. The court did not analyze 2(b) based on other legal claims like those we make in our suit."
Civil rights groups are likely to wait until 2(b) has taken effect before asking a lower court judge to block the provision on civil rights grounds. If rights violations can be extensively documented, the strength of the ongoing legal case against the provision may prove stronger.
SB 1070 also includes provisions that were not at issue at all in the government’s case against the law, including a section that makes it a crime to transport an undocumented immigrant. The civil rights coalition’s suit will challenge these as well.
The Legal Road Ahead
So what’s next for SB 1070? Now, the Supreme Court sends the law back down through the lower courts, where it will land with Federal District Court Judge Susan Bolton, who initially blocked the law. She will have to craft a decision based on the Supreme Court’s ruling. In one way or another, she will lift her injunction. Legal experts say that could take several weeks or months.
The court’s decision will also now impact legal challenges to the other states that have passed copycat bills. Trial courts have blocked most of those laws and in some cases the injunctions have been upheld on appeal. In these other states, which include Alabama, South Carolina, Georgia, Utah and Indiana, the laws’ challengers and the states defending them will be asked to issue new briefs that take into account the Supreme Court’s decision. Ultimately, however, yesterday’s ruling will likely force courts to lift injunctions blocking the "show me your papers" provisions in South Carolina, Georgia and Utah (Indiana does not have that provision).
In Alabama, where an appeals court judge refused to block the "show me your papers" provision, police officers will go on checking immigration status.
Michelle Lapointe is an attorney with the Southern Poverty Law Center. The organization is currently suing Georgia, South Carolina and Alabama. In Alabama, Lapointe says, "we’ve seen prolonged detentions play out and we’ve seen profiling. These are clear examples of why the application of these law may lead to legal questions."
Arizonans, meanwhile, are not waiting for the legal battles to proceed. They are starting to prepare themselves.
"First we’ll reassure our community that it won’t be implemented right away," says Carlos Garcia, an organizer with Puente Arizona. "Then we want to let everyone know the fight does not stop here, to make sure that they get prepared."
Since SB 1070 was first signed into law, Puente organizers in Phoenix have helped communities set up Comites de Defense del Barrio–or, Community Defense Committees. The committees function as support networks when community members are arrested, detained or deported. The groups collect funds to support families when mothers or fathers are deported or to pay bond when sons or daughters are picked up in immigration enforcement sweeps.
"The committees teach people about their rights: what to do if they’re stopped by police, about how to defend themselves in court if they’re placed in deportation proceedings," said Garcia.
"What we’re going to do now is figure out new ways to spread these defense plans through radio, an intense month of community forums all over the state and just reaching out to people," Garcia says. He’s most worried about people in other parts of the state, far from Phoenix where there’s an existing community-based infrastructure to support families. "Folks way up in Flagstaff and down in Ajo have never had to deal with this before in the way that 2(b) will bring."
"People are scared," he added, "they’re really scared."