The Supreme Court and Arizona’s SB1070

By Father Tom Joyce, CMF| comments | Print this pagePrint | Email this pageShare
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The mixed decision on Arizona’s immigration restrictive law SB1070 that came down from the Supreme Court last week set its advocates and opponents to claiming victory. A political cartoon depicted Arizona Governor Janet Brewer and President Barack Obama dancing and gleefully shouting, “We’ve won!”  But who has indeed in the long run? The jury on that is divided and still out. 

I suspect the governor came out on short end. Arizona law enforcement can still, if they have a reasonable suspicion that someone is in this country with authorization, ask for proof that he/she is here legally. They can turn names over to Immigration and Customs Enforcement (ICE) to check its data base, but it’s up to the feds to carry it further. This “show-me-your-papers” provision is the most controversial provision of the law, though not necessarily its most serious.  Justice Anthony Kennedy warned in his concurring opinion that this aspect of the law will be under special scrutiny as it's carried out to assure there is no racial profiling or burdening of U.S. citizens. Already the American Civil Liberties Union has a suit in the federal judicial pipeline charging exactly that. Anyway, ICE has already given up working with some Arizona law-enforcement--namely, Sheriff Joe’s Maricopa County office--and its agents were reminded the day after the decision of what Homeland Security’s priorities on deportation are.

The federal government seems to be the real winner, in that three important aspects of the law were declared unconstitutional. These would have allowed arrests based on suspicion of one’s immigration status, made it a state crime for individuals to not carry immigration papers at all times, and made it a state crime to solicit work if an individual is unauthorized to work. The court was in effect saying that immigration was the business of the federal government and no state can go beyond what the feds demand. They, for example, to not demand that immigrants always carry their immigration papers, but reasonably provide them when lawfully asked. 

This has sent the states with look-a-like SB1070 to review their laws. But most are moving slowly, waiting on the elections. GOP candidate Mitt Romney has made it clear he disagrees with much of the court’s decision but has been vague on he would like to see. Already thrown off base by Obama’s deferral order for the Dreamers, he seemed anxious to get back to talking about the economy. 

The ambiguity of debate is no consolation to Hispanics, especially the undocumented. Not only do they remain in a legal limbo and upset by the Obama administration’s seemingly contradictory policy of record deportations and looking the other way on the Dreamers, they are fearful that other states will return to restrictive legislation now and after the election a new administration will be less restraining on the states. 

Not all state action has necessarily been hostile to immigrants. California’s general assembly has just passed a law forbidding local law enforcement to cooperate with the ICE's Secure Communities program, which is responsible for a high percentage of current deportations. The state senate is expected to pass it soon. But I wouldn’t be surprised if that law doesn’t wend its way up to be Supreme Court and be declared unconstitutional on the same grounds as SB1070.