Victory and Defeat for Immigrant Rights

On Monday the Supreme Courtstruck down key provisions of S.B. 1070. This controversial Arizona law gave state and local authorities the power to act as federal immigration agents. The decision sent a signal to states considering sweeping anti-immigration laws that such laws are unconstitutional. However, the Court unfortunately allowed the contentious “show me your papers” provision to remain standing.

The Court struck down three provisions of the law. One section criminalized unauthorized work by immigrants. The others made it a crime for immigrants to not carry immigration papers at all times, and also allowed warrantless arrests by officers who have probable cause to believe someone has committed a deportable offense. The Court emphasized in its decision that the federal government has made undocumented presence and unauthorized work civil offenses, not criminal offenses.

The “show me your papers” provision gives police officers broad authority over stops and immigrant rights advocates believe it will result in racial profiling. Though the court only allowed one provision of the law to stand, the remaining provision will exact a human cost on people throughout the state of Arizona.

The U.S. Department of Justice had brought a narrow challenge to S.B. 1070, focusing on the federal government’s ability to remain the supreme authority regulating immigration law. The DOJ’s challenge did not focus on racial profiling or race-based discrimination. Because of its narrowness, the DOJ’s challenge allowed the Supreme Court to strike down much of the anti-immigrant law without extensive consideration of the law’s impact on communities of color.

But the specter of racial profiling remains. The standing provision allows police officers toask someone they stop for immigration papers if the officer has “a reasonable suspicion” the person is in the country illegally.

The law does not clearly define what constitutes “reasonable suspicion.” This opens the door to racial profiling against people like Jim Shee, an Asian-Hispanic U.S. citizen with a record of military service, who was stopped twice in one month. He says that he now carries his passport with him whenever he leaves his house. People in Arizona like Shee will continue to be threatened with detention based on the color of their skin, their name, or an accent. And their release from that detention could be delayed while officers verify immigration status.

When law enforcement has to worry about immigration during routine stops, and undocumented people have to worry about being questioned when they seek help from the police, this strains relations between communities and police officers. The Arizona Association of the Chiefs of Police  recognized this as early as 2010.  The Republican Attorney General of Utah, Mark Shurtleff, who supported a similar law in Utah, said he believes the Arizona law undermines public safety.   

Despite all of this, some immigrant advocates are hopeful, because the court (rightfully) found flaws in the provision, making it clear that it could still be found unconstitutional. For example, if the provision forces authorities to delay the release of detainees in order to verify their immigration status, the law could be successfully challenged on pre-emption grounds..

And advocates have brought other cases challenging S.B. 1070. A coalition of civil rights groups brought a case filling in some of the gaps left by the narrow DOJ law suit. The class action Friendly House v. Whiting challenges the law on the grounds that it will result in unreasonable searches and seizures in violation of the Fourth Amendment. It also argues that it will lead to racial discrimination, violating the equal protection and due process clauses of the Fourteenth Amendment. Such arguments were not before the Supreme Court in Arizona v. United States.

Unfortunately, as the battles continue to be fought in the courts, the people of Arizona will have to continue to live under the threat of racial profiling the provision creates. Furthermore, the Supreme Court’s ruling will ultimately not affect some states’ anti immigrant provisions, which in Alabama includes requiring public schools to check immigration status, and in Georgia and South Carolina includes the criminalization of the transport of an undocumented persons.

Justice Kennedy wrote “The history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here… [N]ational power over immigration depends on … a political will informed by searching, thoughtful, rational civic discourse.” The Court’s ruling in Arizona v. United States only addresses some of the problems facing immigrant communities in the United States. If the U.S. is going to honor its heritage as a nation of immigrants, comprehensive immigration reform is necessary.