Proponents of Arizona’s tough immigration law, dubbed SB1070 from the number it was assigned in the state senate, believe that the expected June ruling by the U.S. Supreme Court on the constitutionality of the law will be the last word on its legality.
It won’t be.
Chief Justice John Roberts signaled as much at the very start of oral arguments last week when he sought an assurance from U.S. Solicitor General Donald B. Verrilli, Jr that he wasn’t going to argue about racial profiling.
Verrilli responded that he wasn’t. He has since been vilified in the liberal press for not arguing so because that aspect of the law – show me your papers, please – is the part of the law that is so upsetting to most people not irrationally hysterical about illegal immigration.
The Legislature passed the law in 2010 but the Obama Administration sued, claiming the law violates the pre-emption clause of the U.S. Constitution prohibiting the states from assuming powers reserved to the federal government. Federal district and appellate courts subsequently enjoined enforcement of SB 1070’s key parts – requiring state and local law enforcement officers to enquire about the citizenship status of people they suspect in the country illegally during routine enforcement stops; making being in the country illegally a state crime; making it a crime for illegal immigrants to work in Arizona; allowing for warrantless arrests of people suspected of being in the country illegally; and making impeding traffic for the purpose of picking up an illegal immigrant a crime.
The SCOTUS punditry has been trying to read the court’s tea leaves via the types and tone of questions justices asked Verrilli and Paul Clement, the state’s lawyer, during oral argument. The consensus seems to be that some sort of tortured ruling that splits the baby is in the works, striking down parts of the law but upholding others.
And the part most of those legal experts agree will be upheld is the “papers, please” portion.
The court seemed to indicate that the federal government’s power to regulate immigration is unharmed by law enforcement officers asking about citizenship status during normal interactions with the public, especially when the federal government has been empowering numerous local law enforcement agencies to do just that for more than 20 years.
The assumption that law officers will racially profile and only ask people who look like they’re from Mexico or Central America is a weak argument for the court. Justices don’t like ruling on assumptions, they prefer facts.
In other words, a state requiring law officers to ask about citizenship if they have a reasonable suspicion to do so is constitutionally sound, but the uneven application of such a law isn’t.
Since there is no effective way to enforce the law without racially profiling, it’s likely the law will be back before the court in the future.
Which is what Roberts’ first question Wednesday indicated – this isn’t the end of debate about SB 1070, just the end of the beginning.