In 1994, lawmakers in California were pushing Proposition 187, a ballot initiative that would have prohibited undocumented individuals from using public services. That galvanized immigrant rights activists and a passive Latino electorate. It ultimately led to moving a California under consecutive Republican Governors and swing state status to a reliable “blue” state with strong Democratic majorities. Could Arizona’s SB 1070 set that state on a similar track? The Supreme Court (SC) recently ruled on this State law against Arizona finding that the federal government has broad and superior constitutional authority for immigration.
Background
In 2010, the State of Arizona enacted a statute called the Support Our Law Enforcement and Safe Neighborhoods Act. The law is often referred to as SB 1070 (from the AZ state Senate bill). Its stated purpose was to “discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.” When Governor Janet Brewer signed this bill into law in April 2010, it provoked a range of reactions. Supporters hailed it as an important tool to fight illegal immigration while opponents feared it would escalate racial profiling into a common practice in Arizona.
Everyone agreed that there was a need for immigration reform at the Federal level. That effort has been stymied in Washington due to a stalemate between the Democrats and Republicans. Even Republican leaders who were in favor of finding a sensible solution to this issue, such as Senator John McCain and Lindsey Graham, have retreated in the face of furious opposition from the extreme margins of their party. What a shame!
Issues Addressed
Four provisions of the law were at issue:
1. Section 3, which makes it a crime to be in Arizona without valid immigration papers;
2. Section 5(C), which makes it a crime to apply for or hold a job without proper immigration papers;
3. Section 6, which allows a police officer to arrest someone, without a warrant, if the officer believes that he has committed a crime that could cause him to be deported;
4. Section 2(B), which requires police officers to check the immigration status of anyone whom they arrest or detain and allows them to stop and arrest someone if they believe that he is an undocumented immigrant. This is often called the “papers please” provision.
The last two provisions give specific arrest authority and investigative duties to state and local law enforcement officers.
The federal government challenged SB 1070 as unconstitutional, claiming that Arizona was trying to move in on the federal government’s power to enforce federal immigration laws and moved the Supreme Court to render it null and void.
The Supreme Court Decision
By a vote of 5-3, the Court nullified three of the four provisions (1, 2 and 3 above) determining that they either operated in areas solely controlled by federal policy, or they interfered with federal enforcement efforts. The Court left intact the “papers please” provision. The majority (including Chief Justice Roberts, and Justices Kennedy, Ginsburg, Breyer and Sotomayor) stated that “The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law.”
It is an unmitigated victory for Federal power in the realm of Immigration. The justices make it clear that the federal government has the exclusive right to set immigration policy and to pre-empt state policies that can infringe on that federal power. The message on Section 2(B) provision is also clear—there is a wrong way and a right way to implement it. I got a sense that they were leaning towards tossing it as well. I fully support and endorse this thoughtful approach.
While the majority ruled 5-3, Alito actually sided with them on voting down Section 3, making it 6-2 for that issue. On the issue of the “paper test” the vote was 8-0—unanimous giving a clear nod to the State and the State Courts to act first before asking for SC opinion.
Scalia Bluster
While most Justices dissent with respect, Justice Scalia in his acerbic oral opinion covered a range of topics whether or not they had any relevance to the Arizona case. He noted that President Obama recently used an executive order to accomplish some of the goals of the DREAM Act, by exempting certain young people from deportation. Bringing that up showed remarkable immaturity as it came well after the Arizona case was argued and was legally irrelevant to the issue at hand. He also asked, “Would the states conceivably have entered into the union if the Constitution itself contained the court’s holding?” What he meant is that if Arizona had known this view, they never would have joined the United States in the first place.
To support his claim Scalia went back into history to examine the role of states in policing immigration in the first 100 years of the Republic. He did not stop to consider what kind of immigration the states (especially the Southern ones) handled in those days; much of it had to do with slavery. This approach is a particular weakness of judges who adhere to the “original intent” school of thought, without updating it for the times we live in.
What’s Next?
Arizona will go ahead and apply “papers please” provision—but must do so in a manner consistent with constitutional rights. If civil rights are violated, the law will be enjoined again by the lower court. Furthermore, the aggrieved parties will be able to sue Arizona for damages under federal law. The ruling on Arizona’s law sends a strong signal to the five other states that have passed similar measures. Alabama, Georgia, South Carolina, Indiana and Utah must now review their own laws and strike down the provisions that do not comply with the Supreme Court ruling. The California Senate recently voted to approve the California Trust Act, dubbed as the “anti-Arizona” bill. It essentially blocks local police from referring a detainee to immigration officials for deportation unless that person has been convicted of a violent or serious felony, deferring to the federal government on immigration enforcement.
Understanding Supreme Court Decisions
There are different reactions to Supreme Court decisions. Some people burst with joy or are reduced to despair just because of the decision itself. I prefer to take a logical approach and look at the reasons for the ruling and understand them. The Dred Scott Decision plunged the nation headlong into civil war and Plessy v. Ferguson legalized segregation in this country based on the statute of separate but equal facilities. Brown v. Board of Education of Topeka, Kansas, overturned Plessy v. Ferguson at a later time in our history.
On the same day, it passed the Arizona Immigration judgment, the court also ruled the Stolen Valor act unconstitutional, asserting that lying about your military record is defensible as free speech under the First Amendment. We must keep in mind that Supreme Court decisions are always a matter of context, reflect the times we live in, are built on precedents and ultimately uphold the rule of law. Just because you don’t agree with a decision does not make it wrong or the Court, a political tool of the opposition. The Court’s decisions reflect the interpretation of nine judicial experts at a particular point in time.
The most important message from this decision is that a long-term solution—one that is tough, fair and practical—for a broken immigration system must come from Congress.
Jawahar “Joe” Samagond is a technology communications professional based in Northern California. Originally from Bombay, India he has spent time on both coasts (Boston and San Francisco). He is an avid reader and serves on the Fremont Library Advisory Commission. He is interested in global politics, science and social trends. More about his thoughts athttp://joes9.wordpress.com.