By Karen Siciliano Lucas
On June 25, 2012, the U.S. Supreme Court blocked three out of the four parts of Arizona’s immigration enforcement law “SB 1070” that were under review. By way of background, in 2010, the state of Arizona passed a law called the “Support Our Law Enforcement and Safe Neighborhoods Act,” otherwise known as Senate Bill 1070, or “SB 1070.” But Arizona’s police officers were never allowed to enforce four sections of this law because federal courts prevented them from doing so. In the case before the U.S. Supreme Court the issue was whether those four sections of SB 1070 should stay blocked.
The U.S. Supreme Court blocked the following parts of SB 1070:
- Making it a state crime to ask for or accept unauthorized work (Section 5C);
- Making it a state crime to fail to complete and carry registration papers if you are undocumented (Section 3); and
- Permitting police officers to arrest someone without a warrant if the officers have probable cause to believe that the person has committed a deportable offense (Section 6).
As a result, Arizona will not be able to enforce these sections.
The U.S. Supreme Court did not block Section 2B of SB 1070 (called the “reasonable suspicion” or “show me your papers” provision). Section 2B has two prongs:
- Requiring police to check the immigration status of anyone they lawfully stop for some other violation – no matter how trivial – if the police suspect that the person is undocumented; and
- Requiring officers to determine every arrested person’s immigration status before s/he is released.
The only question the Court considered was whether federal authority to make and enforce immigration law trumps (or “preempts”) these pieces of SB 1070. The Court rejected almost every one of Arizona’s arguments as to why a state would have the authority to independently create and punish immigration violations, even when those state laws appear to mirror federal laws regulating the same behavior, and even when states claim to be merely “cooperating” with federal enforcement. Instead, the Court affirmed that the federal government’s power to set immigration policy is broad, and that the state’s role in immigration enforcement is limited.
Even the Court’s ruling on Section 2B revealed a substantial discomfort with Arizona’s efforts. The Court made clear that its hesitancy to block this provision was essentially a matter of timing – the Court said it would be premature to block this section before it could see whether in fact the section would be enforced in an unconstitutional manner. And the Court placed some tight restrictions on how Arizona U enforce this section without violating the Constitution. It left the door wide open for future legal challenges to this provision, and many analysts believe that Section 2B will eventually fall.
While the case before the Supreme Court was only about one state’s law, this ruling will have big implications for our ongoing advocacy efforts to forestall “copycat” state immigration enforcement laws across the country. So far, five other states – Utah, Indiana, South Carolina, Georgia and Alabama – have already passed their own versions of SB 1070. All five of these state laws have been challenged in court; all five of the cases were placed on hold pending today’s decision. But while these copycats are similar to SB 1070, there are also important differences between them. And there are many more sections of SB 1070 and the copycats that were not even considered by the Court this time (including sections of these laws making it a state crime to “harbor” or “transport” unlawfully present individuals in certain circumstances). Federal courts in these five states must now interpret the copycats in light of what the Court has held. Other states will analyze the Court’s decision as they consider proposing their own measures during next year’s legislative session.
Arizona’s Section 2B does not go into effect immediately. The case must first go back down to the lower federal court, and that could take weeks or months. Other legal challenges, on other Constitutional grounds, are already in the works. These challenges focus on the civil rights implications of Section 2B. A major concern with Section 2B is that it could encourage racially discriminatory policing and prolonged detentions.
In preparation for the possibility that Section 2B and similar provisions in Utah, South Carolina, and Georgia (each of which have been blocked so far) do go into effect sometime in the coming weeks and months, we must all redouble our advocacy efforts. CLINIC is ready to help prepare you to offer the best assistance to clients in that difficult environment.
Please reach out to us for assistance, or visit our State & Local Initiatives Project’s dedicated webpage for materials related to the case, found at “Arizona’s SB1070 at the U.S. Supreme Court.” The site includes a two-page community education resource that legal representatives can provide directly to clients who are concerned about the Court’s decision and would like some practical information; a list of advocacy talking points about the Court’s opinion; and a two-page breakdown of the decision with some preliminary answers to the “what’s next?” question. I can be reached at email@example.com or (202) 635-7410.