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.
But wait.
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.
.
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