On Monday the Supreme Court delivered its decision in the Arizona et al. v. United States case. At stake was the constitutionality of Senate Bill 1070 (SB 1070), Arizona’s highly controversial anti-immigration legislation—and more broadly, whether states have the right to enact their own immigration policies.
There were four provisions, which a District Court had blocked with a preliminary injunction and the Ninth Circuit Court of Appeals later affirmed, under consideration:
Section 3 makes it a state misdemeanor for unauthorized immigrants to not carry “alien-registration” documents with them at all times.
Section 5(C) makes it a state misdemeanor for unauthorized immigrants “to seek or engage in work in the State.”
Section 6 allows state and local police to arrest anyone without a warrant as long as “probable cause” existed that the person committed an offense that makes them removable.
Section 2(B) requires state and local officers to verify a person’s immigration status while “conducting a stop, detention, or arrest” if there exists “reasonable suspicion” that the individual is in the country “illegally.”
By a 5-3 margin the Court affirmed the lower courts’ decision to strike down the first three provisions on the grounds that federal law preempts each. (Justice Kagan recused herself, most likely because she had been Solicitor General at the time the federal government filed the case.) Despite widespread coverage stating that the Court upheld Section 2(B), commonly referred to as the “papers please” or “show me your papers” provision, a close reading of the decision reveals that the majority neither struck it down nor upheld it.
The majority ruled that “at this stage,” prior to implementation, it cannot be determined whether the enforcement of 2(B) will lead to civil rights violations and conflict with federal immigration law. But the decision did note that constitutional concerns would be raised, for example, if state or local officials detained individuals “for no reason other than to verify their immigration status.” Justice Kennedy, writing on behalf of the majority, essentially invited future challenges to the provision: “This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.”
Focusing on the Court’s affirmation of federal primacy in immigration policy, many journalists and commentators have dubbed the Obama administration and those opposed to SB 1070 the “winners” of Monday’s decision. But both the “winners” and the “losers” have released hyperbolic statements spinning the decision as a victory for themselves and their constituents.
Thomas A. Saenz, President and General Counsel of the Mexican American Legal Defense and Education Fund (MALDEF), released a statement that began, “Every schoolchild knows that a report card showing three ‘F’s and one ‘Incomplete’, together with plenty of negative commentary and dire future warnings from your teachers, is not remotely a victory or occasion for boasting or pride of any kind.” Yet Arizona Governor Jan Brewer claimed that the decision upheld the “heart of the bill,” and described it as “a victory for the rule of law.” SB 1070’s sponsor, former Arizona State Senator Russell Pearce (who recently lost his seat in a recall election), described the decision as a “huge win.” And Kris Kobach, the driving force behind many state-level immigration laws and the current Kansas Secretary of State, also referred to the decision as “huge,” although “not a complete victory.”
While much coverage of the case has focused on the long-term, national implications of the ruling, what’s most important to Arizonans is how the decision will affect individuals, families, and communities. And those more attuned to the day-to-day lives of Arizonans expressed serious concerns about the decision not to strike down 2(B). Tucson Police Chief Roberto Villasenor noted that the ruling will make Arizona communities less safe because it “will result in our officers being tied up in court rather than working on the streets to reduce crime.” For Villasenor, the decision is “a setback for local law enforcement.” Mexico’s ambassador to the United States, Arturo Sarukhan, tweeted his concern that Section 2(B) “could lead to racial profiling [and] civil rights violations” in Arizona. Ali Noorani, Executive Director of the National Immigration Forum, said that the Court’s decision not to strike down 2(B) amounted to endorsing discrimination and harassment, and that “[t]he racial profiling inherent in Section 2(B) will cause irreparable harm in Arizona.”
There will be many legal challenges to the provision, and it may not withstand them. But right now, what matters more to Arizonans, and especially Latinos in Arizona, is how Section 2(B) will be implemented. How will police officers determine whether “reasonable suspicion” exists that someone is in the country “illegally”? Racial or ethnic identity supposedly cannot be considered, but country of birth and English-language ability can. The practical difference between these criteria is so blurry that 2(B) will inevitably lead to violations of the civil rights of Arizonans, immigrant and non-immigrant alike. Those that remain skeptical do so for good reason.