Arizona’s Exceptional and Extremely Unusual Hardship
On Monday, Arizona Governor Jan Brewer declared “victory” in the Supreme Court’s ruling on Arizona v. United States. This revelation came in spite of the fact that the Court held 5-3 to strike down three of the four key provisions in Arizona’s SB 1070 law. Brewer still rejoiced as the Court unanimously found that, while not explicitly upholding the provision, it was too premature to enjoin the “papers please” section 2(B). Brewer exuberantly declared:
Today’s decision by the U.S. Supreme Court is a victory for the
rule of law. It is also a victory for the 10th Amendment and all
Americans who believe in the inherent right and responsibility
of states to defend their citizens. After more than two years of
legal challenges, the heart of SB 1070 can now be implemented
in accordance with the U.S. Constitution.
What was the reward for her “victory”? The Obama administration called and raised her in this high-stakes game of poker. As Governor Brewer was in the process of publicly celebrating, the Department of Homeland Security was preparing to announce that they would only send immigration officers to the scene of a traffic stop if the individual came within the Department’s enforcement priorities. The Department also partially terminated their 287(g) agreements with Arizona law enforcement agencies. These actions by the administration left the “heart” of SB 1070 on life support and had Brewer declaring that Obama’s immigration policy was a message to Arizona – that they should “Drop Dead.” The decision from SCOTUS and these pronouncements by the administration should put the other states considering copycat laws on notice.
With these actions, SB 1070 is looking more and more like a toothless insidious law lacking the punch it once was purported to have by its drafters. While many in Arizona are still distressed with the enactment of section 2(B) and the potential for racial profiling, there is undoubtedly going to be litigation against the state which will test the constitutionality of the provision as applied. The Justice Department has taken a proactive measure by setting up a federal hotline for the public to report potential civil rights concerns regarding the Arizona law. The phone number is 1-855-353-1010. The email is SB1070@usdoj.gov.
There is an irony to all the talk by those supporters of SB 1070 regarding the “rule of law.” The fact is that the current immigration laws are the true source of this legal mess and many immigrants have little to no options in actually following the law. It’s a damned if you do, damned if you don’t situation. Arizona has placed its own law enforcement in a similar position with the “papers please” provision. If they enforce the law they’ll get sued, if they don’t enforce the law they’ll get sued.
So, who really won on Monday? It is tough to declare a winner in this battle between Arizona and the United States. There are too many people who lose because of Congress’s inability to enact legislation that could help resolve these problems without a drawn out legal fight. The financial, human and emotional toll that this ongoing conflict has on the public is impossible to calculate. Therefore, we should declare neither President Obama nor Jan Brewer the true victors in this struggle. The true victor: the legal system, which will undoubtedly remain active with more immigration challenges in the coming months.
Written by: Mo Goldman, AILA Media-Advocacy Committee