What Comes Next?

Examining the U.S. Supreme Court's Arizona v. United States Ruling

In April 2010, as Governor Jan Brewer signed SB 1070, Arizona’s harsh new immigration enforcement measure, into law, the storm of condemnation from critics around the country focused mostly on the law’s requirement that police check the immigration status of anyone they have “reasonable suspicion” is present in the United States without legal status. Detractors have long insisted that the “show me your papers” provision, as it quickly came to be known, serves as a blank check for local police to engage in racial profiling. Even the majority of U.S. residents who approve of the law recognize this likelihood, though they generally deem racial profiling to be an acceptable price to pay in order to achieve the law’s larger goal of accelerated immigration enforcement. National polls conducted by The Economist and The New York Times during the week following SB1070’s passage each found that over 70% of respondents agreed that the law was likely or very likely to result in disproportional targeting of Arizona’s Latino residents by local police. Still, this belief did not prevent majorities of respondents in both polls from expressing support for the law.

Arizona’s critics celebrated when President Obama’s Department of Justice quickly announced it would sue the state to block SB1070 from taking effect. However, in contrast to many who protested the law around the United States, the Obama administration did not contend that Arizona’s actions amounted to racial discrimination or profiling. Rather, the Justice Department argued that Arizona’s law, as well as others like it in states around the country, seeks to preempt federal law. In other words, the Obama administration contends that local law enforcement agencies are only authorized to enforce immigration law in the specific capacities that they are directed to do so by the federal government. Since immigration is a federal prerogative, according to this argument, individual states do not have the authority to pass laws that conflict with or try to preempt federal laws.

The Supreme Court heard arguments on four separate provisions within Arizona’s immigration enforcement law, and the justices agreed with the Obama administration’s argument on three of the four provisions.

 

The court determined that Arizona had overstepped its authority by criminalizing at the state level two actions (work and failure to carry proof of immigration status) that are subject to federal jurisdiction and not considered federal crimes. It also ruled that a third provision, which gave police the authority to arrest any suspect without a warrant if they believe that person has committed a crime for which they could be subject to deportation, claimed more authority for local police than is permissible under federal law. While Arizona’s attorneys argued that SB 1070 is merely a tool to enforce existing immigration law, the Court agreed with the Obama administration that the state had advanced beyond assistance to the federal government, creating new state immigration laws more stringent than the federal laws already in place. Over the Obama administration’s protest, however, the Court unanimously agreed with Arizona that its “show me your papers” provision does not establish any new state law but is in fact an example of state and local police supporting the federal government in its enforcement of immigration law.

Still, even as it left Arizona’s “show me your papers” provision in place, the high court warned that though that piece of the law may not be unconstitutional on its face, the state must exercise caution in how it is enforced. Any use of racial profiling, the court warned, will make the law vulnerable to being overturned in the future. Many see such targeting of brown-skinned Arizonans as inevitable, given the wide latitude given to individual police officers’ discretion, but racial profiling is notoriously difficult to prove in U.S. courts. A separate lawsuit, filed jointly by the ACLU, NAACP, and several other civil rights groups, employs the racial profiling argument the Obama administration declined to use. That suit, Valle del Sol vs. Whiting, remains pending in the U.S. Court of Appeals, which has declined to block the “show me your papers” provision from going into effect while considering the case.

In light of this, what can we expect from the 2013 legislative session at the North Carolina General Assembly? It remains to be seen. Though the governors of Arizona and Alabama have tried to spin the verdict positively in their public statements, this court ruling has established stricter barriers than those states had previously been willing to recognize. If Republican leaders in Raleigh were speaking truthfully when they suggested that North Carolina will move forward in a way that insulates the state from the costly court battles, the only Supreme Court-approved manner in which to follow the lead of Arizona and other restriction-happy states is the “show me your papers” approach that will be virtually impossible to implement without inviting a storm of lawsuits. While state legislators may scoff at those lawsuits’ merit, the fact that the Supreme Court itself suggested that it may in the near future need to rule on racial profiling suggests that such suits may produce a battle that will be fought all the way up to the high court, which would generate the exact kind of court costs that the previous round of laws in Arizona and Alabama already have.

Additional Resources

• For a more detailed look at the Supreme Court decision’s direct consequences for Arizona and each of the five states that have passed “copycat” enforcement laws based on SB 1070, see the summary published earlier this month by the National Immigration Forum.

• Earlier this year, Mother Jones published an analysis of the 164 anti-immigration laws passed in states around the country during 2010 and 2011.