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Online symposium: The debate over immigration reform is not over until its over

This is the sixth post in our online symposium on today’s decision in Arizona v. United States, the federal government’s challenge to Arizona’s S.B. 1070.  During the next few days, we will be posting a series of essays on the decision by lawyers and scholars in the field. Kevin R. Johnson is Dean, Mabie-Apallas Professor of Public Interest Law, and Professor of Chicana/o Studies at UC Davis School of Law. Dean Johnson has published extensively on immigration law and policy, racial identity, and civil rights.

On one of the last days of the 2011 Term, the Supreme Court decided Arizona v. United States and determined the constitutionality of four provisions of the controversial Arizona immigration enforcement law known as S.B. 1070.  The case had received a great deal of attention from Court watchers – and not just those interested in immigration.  Indeed, it had a little something for just about everybody, from federalism to civil rights to election-year politics.

In important respects, I called the decision before certiorari was granted, as well as before and after oral arguments. Now that the Court has rendered its long-awaited decision, here is my preliminary analysis of the ruling and its potential impacts.

The decision: States have some immigration enforcement power

In many respects, the Supreme Court’s decision in Arizona v. United States will be far from satisfying to many.  Unlike lawsuits brought by other plaintiffs challenging S.B. 1070, the U.S. government challenged the Arizona law solely on the ground that it violated the Supremacy Clause of the U.S. Constitution, which makes federal law the “supreme law of the land.”  The body of law at issue is known as federal preemption doctrine, which is far from scintillating to most law professors, much less the general public.

In addressing the U.S. government’s preemption challenge, the U.S. Court of Appeals for the Ninth Circuit had agreed with the district court that four provisions of S.B. 1070 impermissibly intruded on the federal power to regulate immigration law..  The four provisions struck down include:

(1) Section 2(B), which requires state and local police to check the immigration status of persons about whom they have a reasonable suspicion of being undocumented;

(2) Section 3, which would have made it a crime not to complete or carry an “alien registration document” (and is directly contrary to the Court’s decision in Hines v. Davidowitz

(3) Section 5(C), which criminalizes the conduct of undocumented employees and goes well beyond the civil sanctions that U.S. immigration law allows to be imposed on employers of undocumented workers; and

(4) Section 6, which allows for a warrantless arrest if the “officer has probable cause to believe [that a person] has committed any public offense that makes the person removable from the United States” under federal immigration law.

The Supreme Court, in a majority opinion by Justice Kennedy that was joined by Chief Justice Roberts and Justices Ginsburg, Breyer, and Sotomayor, affirmed the Ninth Circuit’s ruling with respect to three of the four provisions.  Justice Kagan, the former Solicitor General, took no part in the consideration or decision in the case.

At the outset, the majority emphasized that “[t]he Government of the United States has broad, undoubted power over the subject of immigration and the regulation of aliens” and that “[t]he federal power to determine immigration policy is well settled.”  After reaffirming federal primacy over immigration, the Court applied conventional federal preemption precedent.  It carefully parsed each of the four sections individually, struck down Sections 3, 5(C), and 6, and upheld Section 2(B).  In upholding that lone section, the Court found that there were adequate safeguards in place, including the law’s ban on racial profiling, which saved it from being invalidated on its face.

It is important to note that, in upholding Section 2(B), the Court emphatically left the door open to future claims challenging its application:  “This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.”

Not even able to agree among themselves, Justices Scalia, Thomas, and Alito all filed separate opinions concurring in part and dissenting in part.  Most jarring was Justice Scalia’s dissent, which would have upheld S.B. 1070 in its entirety.  Besides expressing unhappiness with the Obama Administration’s immigration enforcement policies, Justice Scalia contended that the framers of the Constitution understood that the states had sovereign power over immigration.  He stated sarcastically that “[i]f securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.”

Avoiding the civil rights concerns

Since the passage of S.B. 1070, Section 2(B) alone generated a firestorm of controversy.   It, like many of the other new immigration enforcement laws passed by the states, requires state and local police to verify the immigration status of anyone whom they have a “reasonable suspicion” is undocumented.  Critics claimed that S.B. 1070 would increase racial profiling of Latinos in law enforcement, a serious civil rights concern.

The majority’s federal preemption analysis in Arizona allowed the Court to conveniently side-step this most frequently voiced public concern with the Arizona law.  In so doing, the Court was aided by the parties.

Unlike the challenges to the Arizona law brought by civil rights groups, the U.S. government – the only plaintiff whose claims were before the Supreme Court — did not include a claim that S.B. 1070 violated the Equal Protection Clause of the Fourteenth Amendment.  The administration consciously wanted to avoid any claim of racial profiling.  Indeed, during oral argument, Solicitor General Donald Verrilli unequivocally admitted in response to questioning from the Justices that racial profiling was not at issue in the case.  Arizona, of course, would have no reason to disagree.  The Justices eagerly seized on the admission that racial profiling was not at issue in the case to duck the race issue and write a treatise-like opinion on federal preemption.

There are at least two possible explanations for the U.S. government’s strategy to avoid making the case a racial profiling case.

First, a claim of racial profiling presumably would be based on the Equal Protection Clause of the Fourteenth Amendment.  To prevail on an equal protection claim, the U.S. government would have to prove that the state of Arizona acted with a “discriminatory intent” in enacting S.B. 1070.  (See Washington v. Davis (1976).).  This is a heavy burden, especially in a challenge to the constitutionality of a law on its face as opposed to as it has been applied.

Second, the Obama Administration may have wanted to avoid appearing to play the proverbial “race card” in challenging S.B. 1070 as a form of for racial discrimination.  Such reluctance would seemingly grow as the 2012 presidential election nears.  It was relatively easy to avoid race and civil rights concerns when the parties were willing and when a readily available, and far less contentious, legal argument (federal preemption) was at hand.

In the end, the decision in Arizona v. United States centered on the power of the federal vis-à-vis state government over immigration.  However, many critics of the state immigration enforcement laws like those in Arizona, Georgia and South Carolina are less worried about state intrusion on federal power and much more concerned that the laws would encourage discrimination against Latinos, including lawful immigrants and U.S. citizens.  Ultimately, a gaping disconnect exists between the Court’s resolution of the case on legal technicalities and the civil rights concerns of certain segments of the public.  .

The impact of Arizona v. United States

Only time will tell on what the real impact will be of the Supreme Court’s decision in Arizona v. United States on the enforcement of the U.S. immigration laws.  Several possibilities come to mind.

The Court’s decision would appear to be far from the end of the matter with respect to the lawfulness of Section 2(B) of Arizona’s S.B. 1070.  We can expect challenges to that section as it is applied by the police, including claims by U.S. citizens of Mexican ancestry who are stopped and questioned about their immigration status by state and local law enforcement authorities.  Racial discrimination in the criminal justice system has long been a problem in Arizona. In May, the U.S. Department of Justice brought a civil rights action against the Maricopa County Sheriff’s Office, and celebrity Sheriff Joe Arpaio, for allegedly engaging in a “pattern of unlawful discrimination” against Latinos and immigrants.

It does seem clear after Arizona v. United States that there is a narrow space for the states to enforce the U.S. immigration laws.   The decision may encourage more states to pass laws copycatting Section 2(B) and other lawful provisions of S.B. 1070 and perhaps even attempt to more aggressively “assist” the U.S. government in enforcing the immigration laws.

The Court’s decision to uphold Section 2(B) will allow state and local governments on a daily basis to be involved in immigration enforcement as officers enforce the ordinary criminal laws.  This will ensure that the decision has a significant impact in Arizona, but also in other states with laws similar in important respects, such as Alabama, Georgia, and South Carolina.

At the same time, the Court’s careful review of the specific provisions of S.B. 1070 makes it clear that states do not have a blank check in terms of immigration enforcement.  State leaders thinking about their own S.B. 1070 would need to think about the benefits of a largely symbolic – and possibly politically popular — law compared to the costs of enforcement (as well as litigating challenges to the law).

Importantly, nothing in the Court’s decision suggests any change in the Court’s approach to the run-of-the-mill immigration case, in which it looks to the text of the statute and the reasonableness of the agency’s interpretation of the statute.  Immigrants in recent years have prevailed in a majority of the Court’s immigration decisions in the last few years.

Although immigrant rights advocates may be disappointed and restrictionists may be jubilant, it would be hazardous to read too much into Arizona v. United States.  The newest Justice, Elena Kagan, did not participate in the decision, and future cases will push beyond the boundaries of the decision.  For example, Alabama’s H.B. 56, which goes further than S.B. 1070 by barring undocumented students from public colleges and universities and requiring school districts to collect immigration status information of K-12 students and parents, touches on education and raises many different legal and civil rights issues.  See Kevin R. Johnson, Alabama Highlights Civil Rights Concerns in State Immigration Laws, Jurist,  Nov. 12, 2011, available here.

In conclusion, the Supreme Court has cracked open the door to new state legislation, new claims of racial discrimination, and new lawsuits.  States are likely to test the boundaries of Arizona v. United States with new, if not improved, immigration enforcement legislation.  Litigation over the constitutionality of the laws is likely to continue.  The lasting solution to the proliferation of state immigration enforcement laws, which is beyond the power of the Supreme Court, is for Congress to enact comprehensive immigration reform that has the support of the public.  Perhaps the publicity over Arizona v. United States will prod Congress to act.  Until it does, we can expect the status quo to continue.

Recommended Citation: Kevin Johnson, Online symposium: The debate over immigration reform is not over until its over, SCOTUSblog (Jun. 25, 2012, 8:14 PM),