Attorney Mike Sayer from Southern Echo gives a closer legal analysis
The US Supreme Court decision in Arizona v. US, which struck down 3 of the 4 contested provisions in SB 1070, the Arizona anti-immigrant law, should be seen as an extraordinary victory for the people of this nation, and especially for those who toiled so hard at such risk to fight the law.
There has been much hand-wringing over the failure of the Court to hold unconstitutional the “Your papers, please!” provision, Section 2(b) of the law. Let’s take a look at what the Court actually did and did not do regarding Section 2(b).
The Court did not hold Section 2(b) constitutional. It merely did not hold Section 2(b) unconstitutional at this time.
- The Court stated that it was premature to rule on the constitutionality of Section 2(b) because it did not have in the record of the case before the Court sufficient information to make such a decision. The Court stated that since the Arizona law generally, and Section 2(b) specifically, were not yet in effect, there is no pattern of practices, adopted policies, or experience with the application or implementation of the law. In addition, there are no interpretations of the law by Arizona courts. The Court said that it needs this kind of information to determine whether the statute is being interpreted and being implemented in such a manner as to meet constitutional standards, or in such a manner as to violate constitutional standards.
- In short, the challenge to Section 2(b) is not yet ripe for a decision. More needs to happen first. Until that time all that the State of Arizona has as a result of this decision is a conditional or temporary reprieve on Section 2(b).
- The Court noted that under the existing federal law local police already have the right to check with ICE and Homeland Security to determine the immigration status of a person detained or in custody. Therefore, the Court reasoned, the Arizona statute is not unconstitutional “on its face” – that is, on the basis of the text of the law.
- However, a statute can also be held unconstitutional on the grounds of how it is interpreted and applied (i.e. implemented) in practice. Specifically, the Court can strike down the use of a law if it is selectively enforced so as to discriminate against certain individuals or classes of people, for example, on the basis of race, ethnicity, gender, national origin, and so on. Selective enforcement violates the equal protection clause of the 14th Amendment to the US Constitution. The first case in which the US Supreme Court held a state or local law or ordinance unconstitutional on the grounds of selective enforcement was in 1886 in the case of Yick Wo v. Hopkins. In that case a laundry licensing law was selectively enforced to discriminate against Chinese laundry owners in San Francisco.
- The Court also noted that the police cannot use Section 2(b) to stop or detain people simply in order to check their immigration status or use enforcement of immigration laws as an excuse to make such stop or detention. Police can only check immigration status if the person is accused of violating a law that is not involved with immigration policies. But the police cannot bring arbitrary and capricious stops, detentions or arrests in order to justify making an immigration status check. This, the Court noted, would be constitutionally suspect.
- The Court also noted that people who have been stopped or detained must not be held for excessive periods until their immigration status has been determined. In other words, police cannot hold people beyond the normal time it would take to process the situation were immigration status checks not involved. If the immigration status has not been determined in the normal time for processing, then the persons must be released and their immigration status determined after release. For example, the Court said, if a person is stopped for jaywalking and it normally would take only a few minutes to process the summons, the police cannot hold the person for days awaiting an immigration status check. This, the Court noted, would be constitutionally suspect.
- What all this means is that as Arizona law enforcement officials seek to use Section 2(b) – “Your papers, please!” — they will have to walk a tight line. If they mess up and engage in racial profiling, arbitrary and capricious arrests to justify immigration checks, and detain individuals for excessive periods while making immigration status inquiries, the US Supreme Court stands ready to strike down the use of Section 2(b) as applied.
- Therefore, our collective vigilance in monitoring the situation will be critical. The case against Section 2(b) is just beginning. Arizona Governor Jan Brewer’s vain attempt to snatch victory from the jaws of defeat by claiming Arizona was vindicated by the Court’s decision does not pass the straight face test.
- Note: This case was brought by the US government, not by private individuals. This case was primarily about the “pre-emption doctrine”: that is, does the US government have sole authority to make and implement immigration law, or do the 50 states each have an independent right to make and enforce its own immigration laws? There are numerous cases still pending in which private individuals have brought challenges to the law on the grounds of denial of equal protection of the laws under the 14th Amendment to the US Constitution. These cases will again attack Section 2(b).
- The Court set an important precedent in smashing the states’ rights argument that each state had the independent authority to make and enforce immigration laws. We had the same battle before the Civil War. And the same battle during the Civil Rights movement. Here is what the Court said at the end of the majority opinion in the case signed by 5 Justices:
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.
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.
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The United States has established that §§3, 5(C), and 6of S. B. 1070 are preempted. It was improper, however, to enjoin §2(B) before the state courts had an opportunity to construe it and without some showing that enforcement of the provision in fact conflicts with federal immigration law and its objectives.