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The Supreme Court of the United States (SCOTUS) ruled today on Arizona’s SB1070 law. It struck down three unconstitutional provisions and kept one, although its constitutionality may be challenged later on.
1) SECTION 3 is PREEMPTED by Federal Law (Page 15), and therefore is struck down.
Section 3 would have created a new state offense in conflict with federal law. It would have made failure to comply with federal alien registration requirements a state misdemeanor.
“Federal law makes a single sovereign responsible for maintaining a comprehensive and unified system to keep track of aliens within the Nation’s borders. If Section 3 were valid, every state could give itself the independent authority to prosecute federal registration violations ‘diminishing’ the Federal Government’s control over enforcement and detracting from the integrated scheme of regulation created by Congress.”
2) SECTION 5C is PREEMPTED by Federal Law (Page 19), and therefore is struck down.
It would have made it a misdemeanor for an unauthorized alien to seek or engage in work in the state, but this would have been in conflict with federal law.
- The imposition of a penalty will still remain on the employer rather than on the undocumented employee.
- This is consistent with Congress’ intent of keeping penalties on the employer to reduce the possibility of hiring of undocumented individuals and minimizing the possibility of undocumented being penalized which would make it more attractive and easier to hire and exploit undocumented individuals.
3) SECTION 6 is PREEMPTED by Federal Law (Page 26), and therefore is struck down.
It would have allowed LOCAL police officers to arrest without a warrant someone they suspected could be deported.
- Section 6 was struck down because it would have granted greater powers to local police officers that even federal officers do not have.
- Section 6 would have violated our system of checks and balances and of constitutional protections i.e. Due-Process.
4) SECTION 2B is AFFIRMED, but with a caveat – (Page 28)
Section 2B provides that a LOCAL police officer who conducts a stop, detention or arrest must in some circumstances make efforts to verify the person’s immigration status with the Federal government, if a REASONABLE Suspicion exists “the person is an alien and is unlawfully present in the United States”.
- The Supreme Court (SCOTUS) realized that Section 2B could be implemented constitutionally or unconstitutionally but because it has not yet been implemented, SCOTUS decided to take a “wait-and-see” approach.
- This opinion does not foreclose on other preemption and constitutional challenges to the law as interpreted and applied AFTER it goes into effect.
I anticipate several problems with Section 2B:
1) Standards. Section 2B allows a Reasonable suspicion to exist; however, again based on previous history, recent incidents and our system of checks and balances and our values and principles that someone is “presumed innocent until proven guilty”, the Reasonable suspicion follows and maintains the LOWEST standard to be followed with respect to law enforcement.
Two other higher standards are available to us to ensure Due-Process. These higher standards are
- “PROBABLE Cause”, and
- “BEYOND a reasonable doubt”.
Thus, while RACIAL profiling has been ruled out, and because Reasonable suspicion has not been fully defined, the local police officers may intentionally or unintentionally engage in ETHNIC profiling which has not been ruled out.
2) Unauthorized Immigration Related Activities – 287(G) & Secure Communities programs. In Arizona, in particular with Sheriff Joe Arpaio of Maricopa County, based on the high number of repeated violations of the rights of US citizens and legal residents of Hispanic descent, the federal government first warned and then removed Maricopa County Sheriff’s Department from participating in the 287(G) & Secure Communities program.
Thus, while local police may retain the ability to follow their troublesome “Reasonable suspicion” and attempt to determine immigration status with the Federal Government, they will be unable to because this ability has been removed because of violations and abuse of rights of citizens and legal residents.
3) Due-Process. Holding someone (US Citizens or legal residents included) solely to check their immigration status will continue to give rise to possible violations of “unreasonable search or seizure”, and thus a violation of “due-process” and “equal protection under the law”.
Historical Enactment & Amendment of SB1070 plus other considerations:
1) The problem from the inception of SB1070 is that this law was drafted:
- with several unconstitutional provisions;
- several of these unconstitutional provisions were amended out;
- then four other remaining clauses were ruled unconstitutional by a US District Judge; and
- finally the US Supreme Court considered these provisions above, and struck down three of these and kept one although leaving the door open for the constitutionality of it to be challenged depending on how it is implemented.
2) Arizona enacted SB1070 “Support Our Law Enforcement and Safe Neighborhoods Act,” on April 23, 2010.
3) Seven days later because of pressure from various groups, the Governor signed into law a set of amendments to Senate Bill 1070 under House Bill 2162, 2010 Arizona Session Laws, Chapter 211.
4) It has been believed AZ SB1070 was enacted with provisions that:
- violate the federal Supremacy Clause by attempting to bypass federal immigration law;
- violate the Fourteenth Amendment and Equal Protection Clause rights of racial and national origin minorities by subjecting them to stops, detentions, and arrests based on their race or origin;
- violates the First Amendment rights of freedom of speech by exposing speakers to scrutiny based on their language or accent;
- violates the Fourth Amendment‘s prohibition of unreasonable searches and seizures because it allows for warrantless searches in absence of probable cause;
- and infringes on constitutional provisions that protect the right to travel without being stopped, questioned, or detained.
5) On July 28, 2010 Susan R. Bolton, US District Judge ruled on the Preliminary Injunction filed by the US Department of Justice. Judge Bolton ruled and although we may not all agree on her decision, I believe Judge Bolton took a balanced approach and DENIED some parts of the US injunction (it let some clauses of SB1070 stand); and AFFIRMED other parts of the US injunction (Sections 3, 5C, 6, and 2B).
OTHER PROBLEMS Surrounding SB1070:
1) AZ Police Chiefs Association was opposed to SB1070 because they felt it would erode the trust necessary between law enforcement and the community. In their professional judgment, the violation of this trust results in crime being unreported, and thus more crime to occur because of this.
2) According to the Goldwater Institute a conservative think tank, immigration sweeps like those of Sheriff Joe Arpaio of Maricopa County, waste millions of dollars, and have the negative impact of ignoring real crime.
So while Sheriff Arpaio’s budget was quadrupled to $270 million violent crime was increasing in Maricopa County, while crime was decreasing in the rest of the US, and in the rest of Arizona.
3) SB 1070 attempts to criminalize individuals the vast majority of whom have been demonstrated to contribute to the economic well-being of our country.
For example, the White House Council of Economic Advisers issued a study in 2007, entitled “Immigration’s Impact”. This study demonstrated that immigrants documented or not, pay MORE in TAXES than they receive in services.
With respect to immigration, the reality that this is a very political environment cannot be ignored given that in a few months we will be holding our Presidential election.
For example, I suspect that President Obama will be accused of:
a) not doing enough to secure the borders or enforce the laws
(although under President Obama, deportations have been in HIGH record numbers, and investments and expenditures have also been in high record numbers to secure the border and enforce immigration laws)
b) not finding a permanent solution & comprehensive solution
(although President Obama has asked of a very divided and partisan Congress to work together to solve this, and has proposed comprehensive immigration reform that even Republicans were supportive of a few years back.)
c) not doing enough for the Latino community
(although this is not a “Latino” issue, I suspect that ethnic politics will be heavily played.)
- I believe that on the one hand Mitt Romney, Republican Presidential candidate or his surrogates will claim to a primarily Latino audience that they have the “solutions” to help the Latino community and these solutions will be undefined; and
- on the other hand, to a primarily non-Latino audience they will claim that they have the solution for this problem “arising out of Mexico”.
We should not delude ourselves nor allow anyone, in particular politicians, to claim “victory” for implementing and enforcing unconstitutional laws i.e. AZ SB 1070 which was flawed when enacted, had to have unconstitutional provisions amended out immediately, and which had provisions subsequently ruled unconstitutional both by a District Judge and now by the US Supreme Court, with one provision remaining which may also be ruled unconstitutional later on.
In conclusion, Sections 3, 5C and 6 have been struck down for their unconstitutionality.
And while Section 2B has been allowed to stand, unfortunately, I suspect that many more violations of our constitutional protections and of our values and principles will still occur, and many more states will continue to pass similar legislation in violation of the rights of not just undocumented immigrants, but more importantly in violation of the rights of US citizens and legal residents, unless the Congress puts aside partisanship and their narrow interests, and works to implement a real, long-term solution that saves money, is focused on our law enforcement priorities, and which also respects our values and principles.
I agree with DHS Secretary Janet Napolitano, I believe that the real, long-term solution is comprehensive immigration reform (CIR) because CIR will allow us to focus our limited law enforcement resources to fight real crime and to deport violent criminals, while those that are contributing to the well-being of our country are brought out of the margins of our society and continue to contribute to the well-being of our great country and help make it even more prosperous.