Immigration

  • April 26, 2012
    Guest Post

    By Omar Jadwat, Senior Staff Attorney, ACLU Immigrants’ Rights Project


    I was at Wednesday’s Supreme Court argument in Arizona v. United States, observing with particular interest because I am counsel in the separate civil rights coalition challenge to S.B. 1070 (and challenges to the five copycat state laws that were enacted in 2011). I’d urge those who are following this case to pay attention to the following issues, which based on the accounts I’ve seen so far, appear to be underreported :

    First, while much of the argument revolved around Section 2(B), the “show me your papers” provision of S.B. 1070, the discussion seemed to imagine a law quite different from the one the state legislature actually passed. S.B. 1070 itself directs state and local police to detain individuals for investigation and determination of their immigration status, but during the argument, several exchanges construed the section as merely serving to notify the federal government of an individual who was otherwise properly detained. Prognostication around the argument fails to factor in this significant retreat from the plain language of the statute.

    Second, this has always been a case about discrimination, harassment and racial profiling. It is true that there is no separate legal claim based on the Equal Protection Clause in the federal government’s case (although there is one in the civil rights coalition’s case). But it is equally true that from its inception, S.B. 1070 has been synonymous with racial profiling, and for good reason – as law enforcement officials from around the country have repeatedly confirmed, and as our clients’ experiences demonstrate.

  • April 26, 2012
    Guest Post

    By Gabriel J. Chin and Marc L. Miller. Chin is a Professor of Law at the University of California, Davis, School of Law, and Miller is Vice Dean and Bilby Professor of Law at the University of Arizona, James E. Rogers College of Law. SeeSB1070 in the Supreme Court,” their pre-oral argument analysis for ACSblog.


    The argument in the SB1070 case went 20 minutes over its scheduled hour.  Most of the justices' questions addressed Section 2, which requires local police to investigate the immigration status of anyone stopped by the police who they suspected of being undocumented. 

    Justices Kennedy and Scalia each asked the fundamental question of whether “a state must accept within its borders a person who is illegally present under federal law.” Paul Clement answered no, frankly claiming for the states the powers of deportation and border control.

    Justice Scalia agreed. 

    This question is at the heart of the case. All provisions of SB1070 are roundabout ways of forcing undocumented aliens to leave.  If Arizona has direct regulatory authority over illegal immigration, they need not operate indirectly; Arizona should just pass a law requiring the undocumented to leave, punishing them if they refuse.

    Arizona did not do this because it doubts it has that power.  Such a claim would be at odds with the traditional approach, as represented, for example, by Chief Justice Burger, joined by Justices White, Rehnquist & O’Connor dissenting in Plyler v. Doe,who wrote: “A state has no power to prevent unlawful immigration, and no power to deport illegal aliens; those powers are reserved exclusively to Congress and the Executive.”

    But if states do not have the power to regulate directly, then, as Mr. Clement recognized when answering this question, their claim to be able to do so indirectly is undermined.

    In the modern electronic glow that seeks to cast major cases into six word headlines and sound bites, many commentators have observed that the justices supported Section 2. It was common ground among the justices and counsel that an officer acting on her own (rather than by statutory mandate) may question a suspect about immigration status, at least so long as it does not prolong a detention.

    But looking at the exchanges between the Justices and the advocates, a more nuanced picture emerges.

  • April 25, 2012

    by Jeremy Leaming

    Arizona’s racial profiling law, which has prompted other states to enact or consider similar measures, appears to have a strong chance of surviving Supreme Court scrutiny.

    Following oral argument in Arizona v. United States, Adam Liptak, high court correspondent for The New York Times, wrote that justices “across the ideological spectrum appeared inclined to uphold a controversial part,” of the law, and Robert Barnes, of The Washington Post, said the Court “seemed receptive” to the state’s argument that its racial profiling law “was a valid exercise of its power to protect its borders.”

    SCOTUSblog’s Lyle Denniston reports that the justices “focused tightly on the actual operation of the four specific provisions of the law at issue, and most of the Court seemed prepared to accept that Arizona police would act in measured ways as they arrest and detain individuals they think might be in the U.S. illegally.”

    Reporting for TPM, Sahil Kapur said that while it appeared “some aspects” of Arizona’s law might survive, “no clear majority emerged one way or another.” Kapur noted that several of the justices appeared to wrestle “with how far states can go in writing immigration laws before they encroach on what is widely regarded as federal turf.”

    Although it appeared, as Denniston noted, the justices were confident that Arizona police would act reasonably in enforcing the law, an account from a longtime Arizona citizen suggests the reality of enforcement holds otherwise.

    In a piece for The Guardian Jim Shee, an American citizen of Chinese and Spanish descent writes of his encounters with Arizona police after enactment of S.B. 1070.

    Shee tells of two incidents where Arizona cops stopped him and demanded documentation of his citizenship, calling them “humiliating and terrifying.”

    His wife, a Japanese-American “faces the specter of the same police scrutiny,” he writes. “The law invites police to rely on their racial bias when deciding who to stop, so our skin color means we’re more likely to be targeted. Like most Americans, I never carried around my passport. Now, my wife and I always take ours when we leave the house.”

    Shee concludes, in part, that the “days when laws were passed that led to discrimination should be confined to their history classes.”

    Sen. Charles Schumer (D-N.Y.) during a Senate hearing yesterday on Arizona’s anti-immigrant law said that he and other senators may introduce legislation aimed at barring the states from creating a patchwork of immigration laws.

  • April 25, 2012
    Guest Post

    By Margaret Hu, a visiting assistant professor at Duke Law School. She is the author of a forthcoming article in the U.C. Davis Law Review titled "Reverse-Commandeering." 


    As the Supreme Court heard oral argument in Arizona v. U.S., one of the main legal questions it considered is this: Whether Arizona’s Senate Bill 1070 (SB 1070) is preempted by federal immigration law under the Supremacy Clause. This is a statutory-driven inquiry that misses the constitutional mark. The more relevant question is this: Whether SB 1070 poses a threat to the vertical separation of powers. 

    Increasingly, immigration federalism laws like SB 1070 —  state and local attempts to control unwanted migration — exemplify the inverse of the problem posed by the impermissible commandeering of states under the Tenth Amendment.  Specifically, the recent tidal wave of thousands of immigration control efforts proposed by state and local governments can best be characterized as “reverse-commandeering” laws. Setting migration policy at the national level, like establishing a national currency, falls within the sole power of the federal government. Reverse-commandeering by the states is an effort to usurp the federal government’s sole prerogative. This growing movement represents an attempt to control the terms of what federal resources and officers must be appropriated to accommodate a myriad of state immigration enforcement programs. It is a deliberate attempt to skew the immigration enforcement power in favor of the states. 

    In the years since Congress’s failure to pass comprehensive immigration reform legislation in 2006-07, state and local governments have considered over 7,000 immigration-related proposals. In the first quarter of 2011, 1,538 immigration bills and resolutions were considered in all 50 states and in Puerto Rico. By December 2011, 42 states and Puerto Rico had enacted 197 new laws and 109 new resolutions. A tiny handful of the most controversial state laws, such as the Legal Arizona Workers Act (LAWA) — the subject of the Court's recent decision in Chamber of Commerce v. Whiting — and SB 1070 — the subject of the Court's current consideration in Arizona v. U.S. — have received challenges in federal court. Consequently, such challenges address only the tip of an immigration federalism iceberg. 

  • April 23, 2012
    Guest Post

    By Pratheepan Gulasekaram, Assistant Professor, Santa Clara University School of Law.  Professor Gulasekaram teaches Constitutional Law and Immigration.  He is currently working on a book with Prof. Karthick Ramakrishnan (political science, U.C. Riverside) on the political and legal dynamics of immigration federalism.


    Pro-immigrant advocates – and I count myself among them – will be anxiously listening to oral argument in U.S. v. Arizona, searching for clues as to whether the Court will uphold the preliminary injunction against Arizona’s now-notorious SB 1070.  Riding the momentum of district court and appellate court victories, and with the clear weight of precedent and academic opinion on its side, the federal government’s legal case appears sound.  For many progressives and immigrant advocates who have been wearily following the recent rise of state and local regulations the case appears to offer the promise of a final resolution to the question whether subfederal jurisdictions can engage in immigration enforcement.

    Except, it likely will not provide this anticipated resolution.  While a victory for the federal government could establish powerful Supreme Court precedent against subfederal participation, there are at least four reasons why Arizona will not end the contentious national debate and policy battle over state and local involvement in immigration regulation.  First, because Justice Kagan has recused herself, there exists a distinct possibility that the case could result in a split 4-4 vote, producing no majority opinion.  Second, the district court never enjoined the provision of SB 1070 that announced the state’s intention to make “attrition through enforcement” the policy of the state.  Third, the political and legislative dynamics producing this recent proliferation of state and local laws suggest that restrictionist policy activists will not be deterred by the Court’s decision.  And, finally, regardless of the result in the case, subfederal jurisdictions can, and in some cases must, participate in enforcement programs condoned by federal law.  I briefly elaborate on each of these points below.