Online symposium: The Court throws Arizona a tough bone to chew

This is the ninth post in our online symposium on Monday’s decision in Arizona v. United States, the federal government’s challenge to Arizona’s S.B. 1070.  Margaret Stock is an adjunct professor at the University of Alaska Anchorage and Counsel to the firm at Lane Powell PC.  Ms. Stock has written many articles and testified before Congress on issues relating to U.S. immigration law, and has debated immigration topics at numerous venues around the United States.

The Court’s five-to-three decision in Arizona v. United States appears to be a resounding victory for the Obama Administration – legally and politically.  The Court upheld an injunction against three of the four provisions of Arizona Senate Bill 1070, the controversial Arizona state immigration law at issue in the case. While the Court held that an injunction was improper at this point in time against the fourth provision of S.B. 1070, the bone that the Court threw to Arizona on that part of the law will be difficult and expensive for Arizona to chew.  It is not time for Arizona to celebrate, but to prepare for the inevitable onslaught of expensive civil rights lawsuits, which will go forward as soon as Arizona police start enforcing the law.

There were four provisions of S.B. 1070 at issue in the case, all of which had been enjoined by a lower federal court and the Ninth Circuit Court of Appeals. The Supreme Court agreed with the lower courts that three of these provisions are unconstitutional on their face because they are preempted by federal law; it upheld the lower court injunction against them.  The fourth provision, S.B. 1070’s Section 2(B), allows Arizona state and local police to check someone’s immigration status with federal authorities when the person is stopped by the police for some other reason, and the police have “reasonable suspicion” that the person is in the United States unlawfully.  The Court held that this provision is not unconstitutional on its face – but this part of the law may be unconstitutional as applied, so the Court remanded the matter to the lower courts.  Or in other words, the Supreme Court believed that there was a very narrow way in which this law might be applied in a constitutional fashion, and Arizona has not yet had a chance to prove that its law enforcement officers can do that, so they should be given a chance to try.

The practical problem now is that Section 2(B) is difficult to apply in a way that does not violate someone’s rights.  The Supreme Court suggested that the law could be applied constitutionally if Arizona law enforcement officers merely contacted U.S. Immigration and Customs Enforcement (ICE) without detaining a person any longer than necessary to carry out a non-immigration-related reason for the stop, detention, or arrest.  The Court suggested, however, that Arizona police would be acting unconstitutionally if they detained a motorist at a routine traffic stop longer than necessary to write a ticket.

Once the lower court lifts the injunction, Arizona will be permitted to go ahead and try to apply that Section 2(B) of SB 1070 – but it must do so in a way that does not violate anyone’s constitutional rights.   This will require very careful training.  If Arizona state and local police apply the law in a way that violates civil rights, the law will be enjoined again by the lower court.  Furthermore, the aggrieved parties will be able to sue Arizona for damages under federal law.  Thus, although Arizona may be celebrating that the injunction against one of the four parts of its S.B. 1070 law will shortly be lifted, the only provision that is no longer enjoined is the part that is most likely to fail when it is applied. (It is also a part of the law that has no “teeth,” because it has no criminal penalties.)  Any failures to apply the law constitutionally will result in expensive civil rights lawsuits against Arizona.

Contrary to what some people have said, the Supreme Court did not exactly uphold the law; instead, it said that “[t]his opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.”  The Court therefore merely paved the way for the lower courts to lift the injunction and allow Arizona to try to apply the law.  The Court’s opinion also contains several statements that will encourage the plaintiff’s bar to file civil rights lawsuits – it indicates, for example, that “[d] etaining individuals solely to verify their immigration status would raise constitutional concerns,” and that “it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision.”  It appears, then, that the legal fight will now return to the lower courts.

For legal scholars, the most critical point is that the Supreme Court rejected the “mirror image” theory of preemption, which had been put forth by Kris Kobach, who was Mitt Romney’s immigration advisor during the Republican primary campaign.   The “mirror image” theory – which argues that state immigration laws are constitutional if they “mirror” federal laws – was soundly rejected by five Justices of the Supreme Court, including Chief Justice John Roberts.

The decision also opens the way for the Obama Administration to use the decision politically in the upcoming presidential campaign.  As Arizona now attempts to enforce one part of S.B. 1070, there will no doubt be allegations of civil rights violations – and the Obama Administration will use those examples to energize Hispanic voters to support the Obama campaign.  Hispanics are many times more likely than other groups to oppose this particular provision of S.B. 1070 on the ground that it results in racial profiling.

The opinion was written by Justice Anthony Kennedy, who was joined by Chief Justice John Roberts, along with Justices Breyer, Ginsburg, and Sotomayor.  (Justice Kagan recused herself.)  Chief Justice Roberts most likely joined the majority because otherwise a four-to-four split would have affirmed the Ninth Circuit’s prior decision (which held that all four parts of S.B. 1070 were preempted) in full. Justices Alito, Thomas, and Scalia wrote separate dissents; Justice Alito agreed that the alien registration provision of S.B. 1070 was preempted. Justices Thomas and Scalia thought all four parts of S.B. 1070 were facially constitutional.