Originally published on Huffington Post
Arizona Governor Jan Brewer and the nativists who wrote Arizona’s SB 1070 are putting the best public spin they can on today’s Supreme Court decision but they’re undoubtedly licking their wounds in private.
The U.S. Supreme Court, in a loud and clear voice, blocked three key pillars of the Arizona law — the provisions making it a crime for immigrants to fail to register under a federal law, making it a crime for undocumented immigrants to work or solicit work, and allowing the police to arrest people without warrants if they have probable cause to believe that they have done things that would make them deportable under federal law. This is a significant blow to the guts of the Arizona immigration statute and its impact will be felt across the country in other states — most notably Alabama and Georgia, which have enacted similar anti-immigrant provisions.
And the Court didn’t mince words. It made abundantly clear that immigration law is a federal matter and states should keep their hands off. Using strong language it said that these provisions were clearly preempted by federal law because they stand as obstacles to the enforcement of immigration law as enacted by Congress. The subtext of the Court’s decision is that if each state were permitted to enact its own immigration enforcement scheme, then there would be little need for a federal government; the United States would, in effect, cease to be united under a national authority. As the Court said,
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 §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations, ‘diminish[ing] the [Federal Government]’s control over enforcement’ and ‘detract[ing] from the ‘integrated scheme of regulation’ created by Congress.
True, the Court did not strike down §2(B), the “papers please” provision, which risks racial profiling by Arizona police to determine the immigration status of a person they lawfully stop, detain, or arrest if they have a reasonable suspicion that the person the person is in the country unlawfully. And it’s certainly appalling that people will now risk being racially profiled before the Supreme Court sees fit to declare the provision unconstitutional. But the Court’s ruling on 2(B) was very narrow. It said it was “premature” to pass on its constitutionality and explicitly left open the door for further challenges.
At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2(B) will be construed in a way that creates a conflict with federal law… [t]his opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.
Notably, the Court clearly signaled to Governor Brewer and other Arizona officials that arresting and holding someone for the purpose of checking their immigration status was out of constitutional bounds, declaring, “Detaining individuals solely to verify their immigration status would raise constitutional concerns.”
While the Court did not strike down §2(B) today its ruling makes it crystal clear that America stands for the greater principles of equal treatment and non-discrimination, and racial profiling is unconstitutional and won’t be tolerated. As for Governor Brewer and the State of Arizona, they are now on notice that when they enforce what’s left of SB1070 they’d better do so very carefully.