Tuesday, June 26, 2012
Court Invalidates Most of Arizona Immigrant-Check Law
In spite of my usual criticism of both Congress and the President, I tend to be deferential to the Supreme Court. Maybe it’s because it’s in this body that I place my last vestige of hope that our Republic will not entirely transform into the Evil Empire; maybe, on less desperate days, it’s because I understand that fine the points of law on which many decisions turn are not really the broad stroked reported by the mass media.
Nonetheless, I was initially feeling dejected when I heard that Arizona’s immigration law (“SB 1070”) was upheld. The harassment of all racial, ethnic, and linguistic minorities could not proceed with legal blessings. The media have shown Arizona Gov. Jan Brewer gloating and declaring that enforcement will begin.
I then heard that the vote was a unanimous 8-0 vote (with Justice Kagan not participating.)
Unanimous?! Even the liberal Justices? Even Justice Sonia Sotomayor, who once infuriated conservatives by saying,
"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life..."
How could this “wise Latina woman” support a law that places every latino under legal suspicion by their mere existence in Arizona?!
And so, I set aside the media accounts of the ruling and looked closer at what the Court actually said.
The Court considered four separate sections of SB 1070.
SB 1070 §3 made it a crime for failure to apply for, or carry, “alien-registration papers.”
A majority, 6-2, struck this section down as unconstitutional. It crossed the philosophical divide: conservatives Alito & Roberts, centrist Kennedy, and liberals Breyer, Ginsburg, and Sotomayor all voted to void this section. No one will have to apply for ‘papers’ and carry them.
SB 1070 §5: made it a crime for illegal immigrants to seek work, apply for work, or perform work.
A 5-3 majority (Breyer, Ginsburg, Kennedy, Roberts, and Sotomayor) struck down this section as well, because it conflicts with the Federal Immigration Reform and Control Act of 1986, which makes it illegal for employers to hire or employ unauthorized workers. If Congress wanted to create crimes against employees as well, it would have done so, said the Justices.
SB 1070 §6: permitted police to make a warrantless arrest of a person if there was probable cause to believe the individual committed a public offense making them deportable.
The same 5-3 majority (Breyer, Ginsburg, Kennedy, Roberts, and Sotomayor) struck down this section as well.
That leaves only one section of the bill that was challenged and upheld:
SB1070 §2B: Requires an officer to make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there’s reasonable suspicion that person is in the country illegally. This portion also requires law enforcement to check the immigration status of people arrested and hold them indefinitely until the status is determined.
This section was approved 8-0.
Keep the following in perspective:
The Court is not saying they agree with or like the law; they are simply issuing a determination as to its constitutionality.
Second, the law only permits the inquiry “…if there’s reasonable suspicion that person is in the country illegally.”
Not if they’re brown. Not if they speak Spanish. There must be a reasonable suspicion that they are here illegally.
Justice Anthony Kennedy, who wrote the majority opinion, was very clear in warning Arizona by writing that this section, too, could face future constitutional problems if it results in law-enforcement officers detaining an individual longer than they would have without SB 1070 requirements.
All in all, the Justices threw out the most onerous provisions of the law; the one provision they allowed to stand, they allowed to stand with a stern warning that how Arizona chooses to carry out this provision will determine its fate.
I’m breathing a little easier.