The Supreme Court issued a huge decision Monday on the issue of Arizona’s controversial immigration law SB 1070. Arizona v. United States also known as the “papers please” case has been a lightening rod in the area of immigration with activists and immigrants calling it nothing more than racial profiling and an excuse to throw people into private prisons for profit.
In a 5-3 decision with Justice Anthony Kennedy writing for the Court (Justice Elena Kagan did not participate due to a conflict from her job as solicitor general), three of the provisions were struck down leaving the fourth and most controversial provision intact. There has been a lot of misreporting claiming that the Court “upheld” this provision which essentially allows for police to profile people in Arizona based on their skin color. However, a closer reading of the opinion leads us to a different conclusion. The specific issues decided in this review by the court focused on 4 sections of the law: sections 2(b), 3, 5, and 6.
Carlos Gonzalez, a Constitutional Law professor at Rutgers Law School, told EBONY before getting to the individual provisions, the first part of Justice Kennedy’s opinion validates the position of the federal government and the Obama administration by rejecting Arizona’s argument that individual states should be able to make their own immigration laws.
“Justice Kennedy’s opinion for the Court unequivocally confirmed that the Constitution grants the federal government, and not the states, exclusive authority to legislate and administer national immigration law and policy….[Basically], the Court resoundingly reaffirmed the principle that individual states may not adopt their own immigration policies and standards. The nation must have one unified immigration policy, and that policy must be set by the federal government.” This conclusion by the Court is one of the more surprising aspects of the decision considering the conservative leanings of the Roberts Court.
While many reports have focused on section 2(b), the “show me your papers” provision of the law, “[t]he Court definitively struck down three of the four challenged provisions. Two of the unconstitutional provisions [sections 3 and 5(c)] sought to create state law crimes for violation of federal immigration laws. The third unconstitutional provision [section 6] sought to grant state police the power to arrest without warrant any person suspected of committing an offense rendering the arrestee deportable under federal law. In other words, the provision sought to give Arizona police officers the power to arrest for violations of federal immigration laws. Justice Kennedy’s opinion for the Court that found all three of these provisions unconstitutionally interfere with the federal government’s constitutional grant of exclusive power to regulate immigration.”
All of the reporting on the remaining provision section 2(b) have either misused the word “upheld” to describe the Court’s decision or reported Arizona governor Jan Brewer’s victory lap after the ruling without noting that this decision was actually a loss for Arizona. “The fourth challenged provision, section 2(b), sometimes referred to as the “show your papers” provision, was not found unconstitutional, but Court left open the very real possibility of striking it too at a future date. This provision grants Arizona law enforcement officers the statutory power to “determine the immigration status” of any person who is detained for some other reason, so long as there is a “reasonable suspicion” that the detainee is ‘an alien…unlawfully present in the United States.’”
Professor Gonzalez says that the Court appears to want to see how Arizona will actually apply the law which hasn’t gone into effect yet, “the Court found that the ultimate constitutionality of this provision should not be determined until the Court can see how Arizona applies it in the field. Moreover, Justice Kennedy’s opinion for the Court strongly hinted that any application of the ‘show your papers provision’ that amounts to racial profiling, or which is inconsistent with federal immigration policy, will probably be found unconstitutional in a future case.“
Thus, the Court left wide open the chance that another review of SB 1070 on the issue of racial profiling and equal protection could come in the near future depending on Arizona’s application of the law.
“The decision clearly notifies Arizona that the Court will not accept applications of the ‘show your papers’ provision which are based on race, color, or national origin profiling, or which result in unreasonably long detentions. Though not yet formally finding this provision unconstitutional, Justice Kennedy’s opinion for the Court gives Arizona a very narrow basis for applying it in a way that could avoid a future finding of unconstitutionality,” says Gonzalez. The Court’s narrow decision is mostly a win for the position of the Obama administration with the strong likelihood of future challenges to section 2(b) down the road.
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