The following is an essay for our symposium on Arizona v. United States by  Carol M. Swain, Professor of Political Science and of Law at Vanderbilt University. Professor Swain  is an award-winning author and widely recognized expert on race relations, immigration, black leadership, and evangelical politics. Her more recent books include Debating Immigration (Cambridge University Press, 2007) and the newly released Be the People: A Call to Reclaim America's Faith and Promise (Thomas Nelson Press, 2011).

The Supreme Court should uphold the constitutionality of Arizona's S.B.1070 and recognize the legislation as a good faith effort by a state seeking to impose law and order in a crisis situation.  Arizona officials see S.B.1070 as necessary legislation to protect its inhabitants from the harm associated with excessive crime, homelessness, and high unemployment made worse by the uncontrolled influx of illegal aliens across the Southwestern border.  Unlike other U.S. states, Arizona has the distinction of having had its capital city of Phoenix dubbed as the "kidnapping capital of America."  Parts of the state have become safe havens for drug cartels who have established strongholds where law enforcement officials and residents fear to tread.  Given this dire situation, the state of Arizona would have been irresponsible if it had not taken concrete actions to help ensure the health and well-being of its legal residents.

Criticisms of S.B.1070 seem to be politically motivated and orchestrated by groups and foreign entities that benefit directly or indirectly from lax immigration enforcement.  This is especially true for countries like Mexico, Guatemala, and Bolivia who have intervened by filing briefs supporting the law's opponents. President Obama, the Department of Justice, and the Department of Homeland Security have sided with interest groups who favor open borders and amnesty.  These have raised civil rights concerns and have introduced a parade of horribles into the debate. However, Kris Kobach the master architect of the Arizona law has discussed its major criticisms. These criticisms include the unfairness of expecting aliens to carry proof of their legal status, the vagueness of the concept of "reasonable suspicion," the increased risk of racial profiling, the unfairness of asking to see drivers' licenses, and lastly the preemption doctrine based on the Supremacy Clause of the U.S. Constitution. Under the preemption doctrine, state governments are pre-empted from passing legislation addressing areas where the federal government holds primary authority"”for example, immigration. The  Arizona law makes no effort to set standards for immigration law or interfere with existing laws.  Therefore, it does not conflict with preemption principles. To the contrary, the existence of multiple enforcers of immigration law can help ensure that Congressional intent is satisfied.

Kobach has pointed out that since 1940 existing federal law makes it a crime for an alien not to carry his or her papers. Therefore, the Arizona law merely "adds a state penalty to what was already a federal crime." To the other points, he argues that for over forty years courts have defined "reasonable suspicion." It was not a concept invented by Arizona legislators. Further, in response to concerns of racial profiling, Arizona legislatures have clarified that "reasonable suspicion" inquires would only occur if there is a lawful stop made by officers, in other words where officers believe that there is an illegal civil or criminal violation, for instance a traffic violation.

Fears of racial profiling are overblown because the law specifically forbids law enforcement officials from considering "race, color or national origin" in making decisions about immigration matters.  The driver's license fear is unfounded because the law does not demand that anyone has to carry or produce a license.  Lastly, he takes on the issue of preemption and argues that the Supreme Court since 1976 has recognized the right of states to enact laws designed to deter illegal immigration.  In fact, the Court seemingly recognized this right in Chamber of Commerce v. Whiting, which upheld an Arizona statute mandating the use of the E-Verify employment verification system, and again in its decision to remand the ruling by the U.S. Court of Appeals for the Third Circuit that prevented the city of Hazleton, Pennsylvania from enforcing regulations that would penalize employers and landlords who hired and rented to illegal aliens. These recent Supreme Court decisions certainly suggest a willingness by the Court to allow state and local governments to take reasonable actions designed to address issues related to illegal immigration.

The question of whether the Supreme Court will grant certiorari and uphold the rule of law is an open one that can be easily decided on the merits if political considerations are removed from the calculations.  America is not an open borders nation. Instead, it is a nation with laws on the books that are not being enforced by the federal government.  As a consequence, we have an illegal immigration crisis that threatens the sovereignty of the nation. The Court has plenty of ammunition with which to uphold the constitutionality of the Arizona law.  For example, the Court could revisit the issue of federalism, which mandates shared and overlapping governmental jurisdictions.  Under federalism, state governments have the power to experiment and to take actions designed to address unique situations affecting its citizens and other inhabitants.  Institutional failure is driving the entrance of state and local governments into an area normally dominated by the federal government.  Institutional failure related to immigration is most vividly demonstrated by Congress, the Department of Homeland Security, and the Department of Justice's refusal to shore up the system by enforcing existing laws or by passing new ones.

The Court could find a compelling state interest in Arizona's need to protect its inhabitants from the physical and mental harms associated with lawlessness emanating from its location as a border state.  Under no circumstances should the Court interfere with the political process by acting to overturn a decision that the people of Arizona enacted through their governor and state legislature. S.B.1070 can be viewed as a good faith effort by a desperate state to assist an overburdened federal government in fulfilling its legal obligation to protect its citizens from harm. Upholding the Arizona law will help the nation as a whole by reminding the the people and the other institutional players that we are a nation shaped by a constitution that stipulates the guidelines for what it means to be a nation under the law.  Political correctness cannot dictate public policy.  There should be no shortcuts or end runs around justice.

Posted in Featured, Immigration

Recommended Citation: Carol Swain, Why the Court should uphold S.B.1070, SCOTUSblog (Jul. 14, 2011, 9:11 AM), http://www.scotusblog.com/2011/07/why-the-court-should-uphold-s-b-1070/