Online symposium: S.B.1070 rides off into the sunset

This is the second post in our online symposium on today’s decision in Arizona v. United States, the federal government’s challenge to Arizona’s S.B. 1070.  During the next few days, we will be posting a series of essays on the decision by lawyers and scholars in the field.  

At its core, S.B. 1070 is a use of the state police power and state criminal law to enforce and punish federal immigration violators; at its core this is what a majority of the Supreme Court rejected.

In surprisingly strong terms, the Supreme Court sided with the federal government and upheld the Ninth Circuit’s preliminary injunction of Sections 3, 5 and 6 of Arizona’s S.B. 1070 law. Section 3 criminalized non-compliance with federal immigration registration laws; the Court said Arizona’s law interfered with the federal statute. Section 5 criminalized non-citizens’ working without authorization, which federal law did not criminalize. The Court said Arizona could not criminalize something that Congress had determined not to. Section 6 authorized arrests for civil immigration violations; the Court said that was a federal prerogative. (We explain the provisions of S.B. 1070 in greater detail here).

In a 5-3 decision written by Justice Kennedy, and joined by Chief Justice Roberts, and Justices Ginsburg, Breyer and Sotomayor, the Court reaffirmed the almost unique status of immigration law and policy in the federal domain. If states can’t act where the federal government has acted, or where the federal government has not acted, and cannot even carry out civil law on their own, there is little left for states that want to create their own immigration laws.

Whether this decision enters the pantheon may depend on the more momentous and looming decision on the Affordable Care Act. Nevertheless, its practical importance is significant. The decision may sound the death knell for state and local immigration legislative innovations like S.B.1070 and its copycats, and other varieties, like the residential ordinances in Hazleton, Pennsylvania now before the Third Circuit.

The Court tossed Arizona a bone by declining to strike down on its face Section 2(B), which directs state officials to investigate the immigration status of people it stops. It remains to be seen how Arizona, Alabama, and other states will respond; much additional litigation could follow. Section 2(B) provides:

For any lawful stop, detention or arrest made by a [state] law enforcement official… in the enforcement of any other law… where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation.

Left unanswered at this point is what limits the Court might impose on when state officials can check immigration status. The majority hinted that detention longer than necessary to complete the original purpose of the stop would conflict with federal law.

Detaining individuals solely to verify their immigration status would raise constitutional concerns. And 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. The program put in place by Congress does not allow state or local officers to adopt this enforcement mechanism.

So why not decide that question, which was raised at oral argument? The court points to the enormous uncertainties in how the law might actually be applied – a law enjoined on July 28, 2010, days before it was scheduled to first take effect:

 However the law is interpreted, if §2(B) only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive pre-emption—at least absent some showing that it has other consequences that are adverse to federal law and its objectives. There is no need in this case to address whether reasonable suspicion of illegal entry or another immigration crime would be a legitimate basis for prolonging a detention, or whether this too would be preempted by federal law.

The nature and timing of this case counsel caution in evaluating the validity of §2(B). The Federal Government has brought suit against a sovereign State to challenge the provision even before the law has gone into effect. There is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2(B) will be construed in a way that creates a conflict with federal law.

The decision in Arizona v. United States invites the states to move forward on policies instructing officers who otherwise are justified in stopping someone to check immigration status. But the decision also invites as-applied challenges, noting that “[t]his opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.” If Arizona, Alabama or other states read the decision broadly, we will see many challenges – across cases and in individual cases – on preemption, Fourth Amendment, and equal protection grounds.

The flashpoint of whether S.B. 1070 allows or indeed mandates racial profiling is left for another day. Perhaps later challenges to S.B. 1070 will ultimately come to stand for the proposition that race and national origin are no longer legitimate elements of a “reasonable suspicion” calculus in making stops or inquiring about immigration status. That, however, is not what S.B. 1070 says, or what the current applicable U.S. and Arizona Supreme Court holdings would suggest.

S.B.1070 provides that law enforcement officers “may not consider race, color or national origin in the enforcement of this section except to the extent permitted by the United States or Arizona constitution.”

This sounds like a ban on racial profiling, but in fact it authorizes it. The U.S. Supreme Court in Brignoni-Ponce (1975) and the Arizona Supreme Court (in State v. Graciano (Ariz. 1982) and State v. Becerra (Ariz. 1975)) permit race to be used as a factor in immigration enforcement.

If the Arizona legislature in fact wants to ban reliance on racial profiling in enforcement of section 2(B), it can do so by modifying the statute to say that law enforcement officers “may not consider race, color or national origin in the enforcement of this section.” Period.

Whether or not the state further revises Section 2(B), Arizona should keep track of data about the immigration status checks performed by officers. A current state agency exists to collect and analyze such information.

But assume that explicit reliance on race is off-limits. Assume that Brignoni-Ponce and its state analogs have been silently overruled, or that this troubling authority is explicitly sidestepped through executive directives. Arizona Governor Jan Brewer and other proponents have insisted that racial profiling will not be allowed, and that “reasonable suspicion that the person is an alien…and unlawfully present” must be determined by objective facts.

What objective facts can state authorities imagine that would not correlate highly with race?

Federal and state caselaw examining what constitutes reasonable suspicion that someone is undocumented turn on factors as location, language, dress, whether the individual is acting furtively and the like.

What seems objectively undeniable is that many U.S. citizens and lawful immigrants of apparent Mexican ancestry will bear much of the burden of investigation. Also, given that there is no doubt that most of the undocumented population in Arizona is of Mexican ancestry, there is something of an Alice-in-Wonderland quality of contending that a program targeting the undocumented is, somehow, not about Mexicans.

To the extent that S.B. 1070 is about message and not meaning, perhaps S.B. 1070 and its cousins in Alabama and elsewhere will fade of their own accord. These laws are costing the states huge amounts of money, and greater amounts of respect. Prosecutorial and police discretion is one place bad laws go to die.

But if not – if there is aggressive enforcement – then litigation over these laws as applied is likely to become a staple of federal and state courts for some time to come.

No observer – whether a defender or a critic of state immigration enforcement efforts like SB 1070 – thinks that battles over state efforts to shape immigration policy is the best institutional path to immigration reform. Although S.B.1070 has been eviscerated, its drafters and enactors still scored a major social victory by putting the issue in the forefront of public debate.

The Obama administration’s new mini-DREAM prosecution policy – a modest counterweight to its aggressive enforcement of immigration laws to this point – is a reminder both of the centrality of executive policy to immigration law and to the ultimate need for Congressional action.

Ultimately, as was true regularly throughout the last century, it will be a sensible and bipartisan Congress that realizes that the rule of law in this area (and others) includes rather than abhors both individual discretion and occasional systematic grace.