News And Politics

Arizona immigration law goes on trial before Supreme Court

April 25, 2012, 11:02 a.m.

Protestors in Washington D.C. call for immigration reform in the wake of Arizona Governor Jan Brewer's signing of SB 1070 in 2010. Oral arguments over the constitutionality of the law began in the Supreme Court on Wednesday. (Credit: Campus Progress/Flickr Creative Commons)


Arizona's controversial state immigration enforcement measure began its trial in the Supreme Court on Wednesday – and things aren't looking so good for the Obama Administration.

SB 1070, the Support Our Law Enforcement and Safe Neighborhoods Act, was signed into law by Arizona Governor Jan Brewer in April 2010 and dubbed the "nation's toughest bill on illegal immigration" by the New York Times.

Immigrants' rights advocates immediately cried foul, claiming it essentially declares open season on Latinos and invites harassment from law enforcement. Proponents of the law pointed to the need for secure state borders.

SB 1070 was hit by a slew of lawsuits, including one from the Obama Administration for encroaching upon the federal government's jurisdiction in matters relating to immigration. A district judge temporarily blocked four of the law's provisions from going into effect, an action that was later upheld by the U.S. Court of Appeals for the Ninth Circuit in San Francisco. The four provisions of SB 1070 currently on hold are:

--The requiring of local law enforcement to check a person's immigration status while enforcing other laws if she or he has "reasonable suspicion" that that person is in the country without documentation.

--A provision that authorizes law enforcement to arrest immigrants without a warrant if there is "probable cause" they committed a crime.

--A section making it a state crime for "unauthorized immigrants" to fail to carry registration papers and other government identification at all times.

--A ban on undocumented immigrants' applying for, soliciting or performing work.

Those provisions are the center of the Supreme Court cases – and as the Associated Press reports, it looks like the Court is ready to let Arizona enforce the first two provisions, although it's unclear what it may do regarding the remaining two.

"You can see it's not selling very well," Justice Sonia Sotomayor, told the Obama Administration's solicitor general, Donald Verrilli.

This is the last case the Supreme Court is hearing this term. It is expected to make its decision by late June. Eight of the nine Supreme Court justices are hearing the case – Elena Kagan is not taking part, presumably because she was involved with the administration's initial legal challenge to Arizona's law when she was solicitor general.

An 4-4 tie would likely keep the four provisions of the law on hold, although it wouldn't answer broader questions about constitutionality.

Behind the lawsuit

The central objection by the federal government to SB 1070 is that Arizona has overstepped its bounds in immigration enforcement, said Kathleen Kim, a professor of law at Loyola Law School who specializes in immigration and immigrants' rights.

"The chief objection from the Obama Administration in the lawsuit is that SB 1070 is preempted by federal authority over immigration matters," she said. "Arizona's argument to that is that SB 1070 is parallel to the federal immigration law and does not present an obstacle or conflict with its objectives."

In other words, Arizona's law mirrors and supplements federal immigration enforcement. But Edward Park, a professor of Asian Pacific American Studies at Loyola Marymount University who specializes in immigration, says SB 1070's most controversial provisions are already a legal reality in some parts of the United States.

Park pointed to section 287(g) of the Immigration and Nationality Act.

"287(g) is an agreement that local law enforcement makes with the U.S. Immigration and Customs Enforcement (ICE) agency," explained Park. "And when they go into this agreement, in things like routine traffic stops, the police officers inquire about the legal status of the folks they pulled over, for example. And maybe then they turn the person over to ICE to check their legal status, and if they're found not to have legal documentation, then they are removed."

That's a far cry from the Los Angeles Police Department, which according to LAPD spokeswoman Karen Rayner, does "not get involved in anyone's immigration status."

That's because Los Angeles is a "sanctuary city," said Park, but there are a number of counties where 287(g) is in effect, particularly in the South.

"Since 287(g) has been such a big part of local policies dealing with undocumented immigrants, the most egregious part of the Arizona law, in my mind, has already been America's routine immigration practice."

Implications for South Los Angeles and beyond

The outcome of the Supreme Court's hearing on SB 1070 will set a precedent, said Kim.

"If the Supreme Court overturns the decision of the Ninth Circuit and finds that SB 1070 is constitutional, or even makes a compromise decision and finds some of its more controversial provisions are constitutional, I think it sends a signal to the rest of the states that this kind of comprehensive immigration enforcement bill would be permissible."

She added that there are number of pending challenges to SB 1070, and a Supreme Court opinion that looks upon the immigration law favorably would send a message to the judges hearing those other cases.

Park echoed that. "If the Supreme Court says SB 1070 is legal, there's going to be a wildfire of laws passed all over California," he said, adding that it will give "license" to municipalities who have so far met heavy resistance on implementing similar laws.

Kim hopes California wouldn't pass a similar law, but says the Golden State has a history of passing immigration measures that "negatively impact California's immigrant population" – so "the potential is there."

The implications of such a law for an area like South Los Angeles wouldn't be good, she added.

"If the Supreme Court upholds SB 1070, I think it would have great negative consequences everywhere and definitely on the immigration populations residing in South L.A.," said Kim. "At the heart of SB 1070 is a criminalization of undocumented status that empowers state and local law enforcement to investigate the immigration status of anyone it stops, arrests or detains."

That will just give undocumented individuals "further reason" to be scared of law enforcement, she explained.

"Individuals that either have no immigration status or precarious immigration status are just going to fall even further beneath the surface and live further in the shadows," she said, which makes them particularly vulnerable to exploitation and abuse.

Park didn't think a law like SB 1070 would affect Los Angeles, though.

"The City of Los Angeles has clearly been part of this other voice that tries to figure out comprehensive immigration reform," he said. "But make no mistake about it: There's huge polarization about the question of undocumented immigrants."

If the Supreme Court strikes down the provisions of the law in question, though, that will also set a precedent.

"Then we'll have the doctrinal effect of setting a precedent so that these other pending challenges will take guidance from the Supreme Court and strike down similar provisions from other state immigration enforcement bills," Kim said.

Park doesn't think that will happen, at least for what he calls the most controversial part of the law.

"It would be a huge surprise if the U.S. Supreme Court said that provision of the Arizona law is unconstitutional," he said, referring to the authorization of local and state law enforcement to check immigration statuses. "In the U.S., we've been living with this for almost 10 years."

Kim doesn't think the law will be upheld. "I think that those four provisions that are under scrutiny will be found unconstitutional," she said. "I think the Supreme Court's opinion will be consistent with the Ninth Circuit's decision. I hope it will be."

Photo by Campus Progress via Flickr Creative Commons.

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