Arizona's SB 1070: The Supreme Court on immigration

Ten days after President Obama endorsed the DREAM Act, the Supreme Court of the United States ruled on the challenge to the controversial Arizona immigration statute, SB 1070. Arizona enacted the “Support Our Law Enforcement and Safe Neighborhoods Act,” also known as SB 1070, in 2010. Before the lawsuit ever took effect, numerous organizations including the American Civil Liberties Union (ACLU) and the United States Department of Justice filed lawsuits challenging the constitutionality of the Arizona law and asking for an injunction to prevent the law from going into effect.

The day before the Arizona statute was scheduled to take effect, the United States District Court issued a preliminary injunction to prevent four provisions of the Arizona immigration law from taking effect. The United State Court of Appeals for the Ninth Circuit affirmed this decision, causing Arizona to appeal to the Supreme Court of the United States. The Supreme Court upheld the injunction against three of the four anti-immigration provisions, but allowed the fourth provision, Section 2(B), to stand. There are concerns that the actual enforcement of Section 2(B) will lead to racial profiling, but the Court decided that the provision should stand until Arizona has time to enforce it.

SB 1070 Section 2(B) requires state law enforcement to make a “reasonable attempt … to determine the immigration status” of any person stopped, detained, or arrested on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” The law also provides that “any person arrested will have their immigration status determined before they are released.”

While the Supreme Court held that there are ways to read Section 2(B) that do not conflict with federal law, the Court did leave the door open for challenges in the future. Because Section 2(B) will become law in Arizona, there is concern that state law enforcement will now be able to use this law to profile the people they stop or could potentially stop. There is speculation that this will lead to an increase in arrest and detention of legal immigrants or naturalized citizens that have ethnic appearances. However, as the Court stated, this provision cannot be enjoined until there is proof that this type of profiling and discrimination has in fact occurred.

It is easy to see the constitutional concerns with Section 2(B). To begin with, police officers have discretion over who they choose to arrest or stop. There is no definition of what the “legitimate basis” is in order for an officer to check a person’s immigration status. It also does not specify that police officers need special training in order in order to avoid discrimination when detaining individuals.
Because Section 2(B) requires an immigration status check of every person stopped, detained or arrested if there is a reasonable suspicion that the person is an alien or unlawfully in the U.S., state law enforcement will likely have an increased need to contact federal Immigration and Customs Enforcement. Some of the challenges proposed that this influx of communication interfere with the federal immigration scheme. However, Justice Kennedy, writing for the majority of the Court noted that Section 2(B) would be legal because, “Congress has done nothing to suggest it is inappropriate to communicate with Immigration and Customs Enforcement (ICE) . . . Indeed, it has encouraged the sharing of information about possible immigration violations.”

The Supreme Court attempted to answer the racial profiling challenges by emphasizing the limits built into Section 2(B); specifically, that officers “may not consider race, color or national origin . . . except to the extent permitted by the United States and Arizona Constitutions.”

It is difficult to see how the Arizona courts will be able to enforce such a protection because verifying a person’s immigration status does depend on national origin. Imagine an elderly Latino woman that has been a citizen of the United States for 30 years arrested for jaywalking and does not have a valid driver’s license because of her age and eyesight. She could now be lawfully detained until her immigration status is validated. An undocumented immigrant with blue eyes and light skin without a driver’s license, however, is less likely to be detained under similar circumstances, given Arizon’s focus on “protecting” its border with Mexico.

Arizona has tried to persuade its residents and the United States that the law will not allow racial profiling. Regardless of such statements, the law targets immigrants for more scrutiny by law enforcement. Sheriff Larry Dever of Cochise County Arizona stated, “Unfortunately, 2B does not go far enough to eliminate sanctuary cities and they will continue to be a draw for illegal immigrants.” Since SB 1070 was enacted, hundreds of immigrants have already left Phoenix, Arizona for the fear of being stopped, detained and deported.

The ACLU argues Section 2(B) promotes racial profiling because people who are being detained are people of color. They are at a police station longer in order to prove they are citizens or legal residents, even for such minor violations as jaywalking or missing a stop sign. The Supreme Court was clear that if such incidents occur repeatedly in the future, such violations of equal protection under the law will result in striking down Section 2(B).

There is also a fear that the Supreme Court’s decision in Arizona v. United States will lead to similar anti-immigration laws in other states. For example, Alabama’s “Show Me Your Papers” law makes it a crime for undocumented immigrants to buy a house, pay a utility bill, and sign a contract. In order to stop this ripple effect the ACLU has already raised $8.77 million through their campaign, “We Vow to Fight,” to take Arizona and other states that have similar laws to court.

The ACLU’s goals are to encourage other states to reject laws similar to Arizona’s SB 1070, persuade President Obama to change federal programs dealing with immigration, to continue fighting Arizona, Alabama, Georgia, South Carolina, Indiana and Utah in court, and to make people come together with the purpose of defending their rights.
The ACLU explained that immigrants, as much as citizens, have rights in the United States. Regardless of immigration status, U.S. persons have the right to not be racially profiled by the police, to ask if they are free to leave, not give permission to be searched, to remain silent, and to have a lawyer present when addressing law enforcement. It is also important to remember not to sign anything before speaking to a lawyer and to not resist arrest by the officer.

The Court took a moderate view on Arizona’s immigration law in Arizona v. United States. Other civil rights organizations have noted that this is the time for Congress to enact a federal law to protect immigrants from legislation such as SB 1070 now and in the future. Congress could issue its own challenge to such legislation by enacting the End Racial Profiling Act or another statute that would ultimately trump state laws such as SB 1070, Section 2(B).

Without a federal law that actually preempts or trumps state law, anti-immigration provisions such as Arizona’s SB 1070 will be left standing even by the highest court in the United States. While the decision was moderate, it did enjoin three anti-immigration provisions, and leave room to challenge the fourth in the future. As the ACLU’s Executive Director Anthony D. Romero stated on June 25, 2012, “Today’s decision is an invitation for more litigation, while civil rights are inevitably violated.”