Submitted by Brendan Fischer on
The U.S. Supreme Court has invalidated provisions of Arizona's controversial SB 1070 immigration law, which had been approved as a "model" bill by corporations and legislators at an American Legislative Exchange Council (ALEC) meeting before it was introduced in the Arizona legislature. The Court held that striking down the law's controversial "papers please" provision would be premature, but narrowed the provision's application and made clear that it could be challenged at a future date.
Three of Four Provisions Struck Down
Justice Anthony Kennedy, writing for the 5-3 majority, held that "the state may not pursue policies that undermine federal law." (Justice Elena Kagan did not participate in the decision.) On this basis, his majority opinion struck down provisions that would have required all immigrants to carry immigration registration papers (and by implication, would have required citizens to carry proof they were not immigrants) and that made it a criminal offense for an undocumented immigrant to seek a job or work in the U.S.
The opinion also struck down Section 6 of the Arizona law, which would have allowed law enforcement to make arrests without a warrant if they suspected a person was in the country illegally. "As a general rule, it is not a crime for a removable alien to remain present in the United States," Justice Kennedy noted. "There are significant complexities involved in enforcing immigration law," the opinion stated, and upholding the law's provision "would allow the State to achieve its own immigration policy." This would contravene the authority in Article I of the U.S. Constitution granting the federal government power to create a "uniform" immigration law for the entire nation.
"The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed."
Reflecting a more humane approach to immigration than the rhetoric embraced by Arizona legislators and many right-wing leaders, Justice Kennedy wrote, "Discretion in the enforcement of immigration law embraces immediate human concerns."
"Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime." The Arizona law as originally passed required law enforcement to treat all immigrants as suspect regardless of their activities.
"Papers Please" Law Survives For Now, But Is Narrowed
Some immigrant rights advocates are dissatisfied with the decision because it did not strike down the law's most controversial provision, Section 2(b), the "papers please" section that allegedly invites racial profiling.
However, the Court did not give the law a green light, instead holding that striking down the law would be premature because "there is a basic uncertainty about what the law means and how it will be enforced." Section 2(b) requires law enforcement to make a reasonable attempt to determine a person's immigration status after they are stopped, detained, or arrested, if there exists "reasonable suspicion" that the person is unlawfully present.
Because the law never took effect, the Court said it was unclear whether the law as written would necessarily interfere with federal immigration law, the only basis for the challenge before the court.
The case was not based on whether the law promoted racial profiling or violated people's civil and constitutional rights. Other challenges on that basis are currently pending.
In the original version signed by Arizona Governor Jan Brewer (an ALEC alum), Section 2(b) read that an immigrant status inquiry is required "For any lawful contact made by a law enforcement official" (italics added). This was the same language in the original ALEC model. One week after it passed, the Arizona legislature changed the word "contact" to the phrase "stop, detain, or arrest," altering the law from requiring law enforcement to check a person's status even if they were reporting a crime, to only requiring an inquiry when a person is stopped, detained, or arrested.
The Court implied that the original language would be problematic, writing that "detaining individuals solely to determine their immigration status would raise constitutional concerns." This statement also foreclosed the legality of law enforcement stopping or detaining individuals solely for the purpose of checking their legal status.
Justice Kennedy gave specific instructions that narrowed the likely implementation of Section 2(b), writing that law enforcement can initiate an inquiry into a person's immigration status if they are stopped or detained, but cannot continue holding a person until the check is complete.
Hours after the Supreme Court announced its decision, the Obama administration announced that it would be suspending the so-called 287(g) program in Arizona, which had given local law enforcement delegated authority to enforce some immigration laws under a discretionary provision of the Immigration and Nationality Act. This means that even if Arizona police increase their number of immigration inquiries, they'll have to rely on federal officials to make arrests.
The administration also says that immigration authorities will be selective in responding to calls from Arizona law enforcement about people's immigration status, and it will focus enforcement on those who meet high priority criteria, such as being wanted for a felony.
Challenges to Section 2(b) in the Works
In upholding Section 2(b), Justice Kennedy also wrote that "this opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect."
One case that might present that challenge is Friendly House v. Whiting, a case brought by the American Civil Liberties Union (ACLU) currently pending in federal court. That case challenges Section 2(b) on grounds that it violates the Fourteenth Amendment's Equal Protection provisions by encouraging racial profiling, as well as violating the Fourth Amendment by unconstitutionally extending the length of time a person is detained. The case is currently before Judge Susan R. Bolton, the judge that initially enjoined SB1070 on federal preemption grounds in U.S. v. Arizona, the same case that was appealed to the U.S. Supreme Court.
The ACLU says it has raised nearly $9 million to fight against the Arizona law's remaining provisions.
SB 1070 Has ALEC Roots
In December 2009, months before the Arizona legislature took up the controversial immigration bill, for-profit prison and bail industry lobbyists gathered behind closed doors with state legislators at an ALEC meeting where the "No Sanctuary Cities for Illegal Immigrants Act" was approved as a "model bill" to be introduced in statehouses across the country. The National Rifle Association was then the private sector co-chair of that ALEC task force.
The law was reportedly drafted by Arizona's recently-recalled state Senate leader Russell Pearce, a leader in ALEC, along with now-Kansas Secretary of State Kris Kobach, a former aide to former Attorney General John Ashcroft.
The private sector membership of the Public Safety and Elections Task Force included for-profit prison operator Corrections Corporation of America (CCA), which before the meeting had identified immigrant detention as a profit center important for its future growth, stating it anticipated receiving "a significant portion of our revenues" from detaining immigrants. Around half of all immigrant detention facilities are operated by for-profit corporations. After the Arizona bill was introduced, 30 of the bill's 36 co-sponsors promptly received campaign contributions from donors in the for-profit prison industry.
CCA subsequently claimed that it never voted on ALEC bills, even though it previously co-chaired the task force as that ALEC committee advanced numerous bills to privatize state prisons, expand the conditions for prison labor to compete with the private sector, and increase the length of sentences for various crimes.
The for-profit bail bond industry's trade association, the American Bail Coalition (ABC), also had a representative on the ALEC task force. An immigrant facing removal in some cases may be released on bond, and will often pay a commercial bail bondsman for their release. The chairman of ALEC's Private Enterprise Board at the time was ABC general counsel Jerry Watson, whose law firm biography lists him as "specializing in the field of ... immigration bonding."
The Task Force responsible for the "No Sanctuary Cities for Illegal Immigrants Act" also ratified the "Stand Your Ground" law initially cited to protect Trayvon Martin's killer in Florida and other laws that make it harder for American citizens to vote. Amidst growing controversy about these laws in 2012, ALEC disbanded that task force (a move that may be little more than a PR stunt).
Five Other States Have ALEC-Inspired Immigration Laws
The ALEC "No Sanctuary Cities for Illegal Immigrants Act" served as a model for similar laws in Utah, Indiana, Alabama, Georgia and South Carolina. These states will be parsing the Supreme Court's decision to see how their statutes will be affected. Legal challenges to these laws have already been filed, and more are expected.