The U.S. Supreme Court has issued its decision on the controversial Arizona immigration law, SB 1070, which was challenged by the Obama administration on federal preemption grounds. Since the ruling allowed one key provision of the law to stand, the need for comprehensive immigration reform is more pressing than ever.
The three provisions of SB1070 that were invalidated by the Court are: Section 3 which makes it a crime to fail to register under a federal law; Section 5(C) which makes it a crime for an undocumented immigrant to perform or apply for work; and Section 6 which authorizes the police to arrest a person based on probable cause that he or she has committed an offense which makes him/her removable.
In striking down these provisions, the Court said that federal law trumped state law when it comes to immigration. The administration chose not to attack the law on racial profiling or equal protection grounds.
The Court upheld Section 2(B), the “show me your papers” provision. It authorizes state police to determine the immigration status of a person who is stopped, detained or arrested. This allows local police to check the immigration status of anyone they suspect to be in the country illegally.
Supporters of SB1070 find this sufficient to declare victory but it must be remembered that the Court made a clear warning in the decision. Although Section 2(B) could not be challenged as written and prevented from going into effect, there may be other preemption and constitutional challenges to the law as interpreted and applied after it becomes effective. The Court also cautioned that detaining individuals for the sole purpose of verifying their immigration status would raise constitutional concerns.
This constitutional challenge is expected by many to follow. The problem with the “papers please” portion of SB1070 is it encourages racial profiling and discrimination. There is a fear that state police, in implementing the law, will base their actions on what people look like or what language they speak. That would be unlawful under federal laws prohibiting racial and ethnic discrimination.
All eyes are not only on Arizona but on other states as well. Five other states have enacted SB1070-type laws and in twenty-four states legislation has been proposed that include at least one of the four controversial provisions. By allowing Section 2(B) to stand, the Court has left the door open for states to pass their own, albeit limited, legislation.
Whatever path the ruling may be said to have paved way for is actually narrow and tricky given the Court’s caveat. Nonetheless, SB1070 and similar laws will be, if they are not already, implemented. Unfortunately, there must first be an actual case of racial profiling before the invidious discriminatory intent of the law merits discussion by the Court. It could be a U.S. citizen who is suspected of being an illegal alien.
Or it could be a DREAMer who already applied for deferred action. It remains to be seen how the new federal directive to grant deferred action to those who came to the U.S. at a young age would be applied in light of Section 2(B). The DREAMer could have been detained by Arizona police a little too long because Immigration and Customs Enforcement (ICE) could not give a definite answer as to his status, maybe because his application is still pending or simply because ICE could not find his application.
Although federal immigration agents have been instructed to use their prosecutorial discretion in determining which individuals to remove from this country, state police can legally make a status check on anyone they suspect as having no lawful status and detain them while doing so.
These examples highlight the need for a comprehensive immigration system. Throwing in a patchwork of state laws into the intricate maze of federal immigration laws makes for a minefield. At the losing end are the individuals with whom, though they may have “crossed oceans and deserts”, we all share a common destiny.