• June 26, 2012
    Guest Post

    By Margaret Hu, a visiting assistant professor at Duke Law School  

    In Arizona v. U.S., the Supreme Court only upheld Section 2(B) of the highly controversial Arizona immigration law, also known as SB 1070 (Arizona's Senate Bill 1070). Three other provisions of SB 1070 were struck down. Upholding Section 2(B), however, is problematic because it preserves the provision of the bill that invites state and local law enforcement to engage in racial profiling.  

    Section 2(B) is known as the "your papers please" or "show me your papers" provision of the highly controversial law. Some are reassured that the Court recognized that the constitutionality of the "show me your papers" provision of SB 1070 might be reconsidered at some point. The Court suggested the question is now whether Section 2(B) might create a problem of racial discrimination in violation of the Fourteenth Amendment's Equal Protection Clause, and other constitutional problems. In other words, Section 2(B) is not going to be thrown out now, before the law is implemented. But, if the law results in racial profiling, the Court said that this question could be dealt with in the future, when the evidence surfaces.

    Unfortunately, 25 years of immigration law experimentation with "show me your papers" policies have demonstrated that the future consequences of this provision can already be predicted: Section 2(B) will likely lead to widespread discrimination. 

    Those U.S. citizens and lawful immigrants who may "look or sound foreign" are likely to be the target of scrutiny, simply based upon their appearance. And because states may now perceive that they have the green light to bake "show me your papers" requirements into state immigration law, the racial profiling problems stemming from a "show me your papers"-based immigration policy will likely worsen.

  • June 25, 2012

    by Jeremy Leaming

    Although the Supreme Court invalidated three key provisions of Arizona’s outlandishly harsh anti-immigrant law, it left in place for the moment the law’s ignoble “show me your papers” measure.

    The majority in Arizona v. United States invalidated three provisions of the law, SB 1070, saying they could not be enforced because they conflicted with the federal government’s constitutional authority to set policy on immigration matters. Those provisions included Section 3 criminalizing the failure of persons to carry immigration documents; Section 6, barring undocumented immigrants from seeking work; and Section 6, allowing warrantless arrests when an officer has probable cause to believe a person who has committed a crime is undocumented.

    Justice Anthony Kennedy writing for the majority said the “national government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the nation’s meetings its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse.”

    But Section 2 (B), the “show me your papers” provision was upheld. The provision requires police to make a “reasonable attempt … to determine the immigration status” of persons stopped, arrested or detained on some other legitimate basis if “reasonable suspicion exists that the person” is “unlawfully present in the United States.”

    Regardless of how that provision is interpreted, Kennedy said it “only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive preemption – at least absent some showing that it has other consequences that are adverse to federal law and its objectives.”

    Kennedy, however, said Arizona’s “show me your papers” provision may yet be susceptible to preemption or constitutional challenges. He said today’s opinion “does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.”

  • May 17, 2012
    Guest Post

    By Bruce Goldstein, President, Farmworker Justice. For more coverage of efforts to improve the lives of farmworkers, see the blog Harvesting Justice.

    For Farmworker Justice, there’s unfortunately no shortage of examples of mistreatment of the people who harvest our fruits and vegetables to illustrate the need to continue fighting for farmworkers’ rights. Our mission is to empower agricultural workers to implement lasting solutions to systemic abuses. We focus on labor rights, immigration policy, health, occupational safety and access to justice.

    Last month, Farmworker Justice and Florida Legal Services filed a lawsuit in Florida on behalf of two farmworkers who were among the victims of human trafficking and labor violations while working for a potato grower in Hastings, Florida. The complaint alleges that a farm labor contractor took workers to a squalid, isolated labor camp, where they were supplied with decrepit housing, illegal drugs, and food, for which the workers were loaned money at 100 percent interest. Money was taken from their weekly wages to pay for their rent, food, drugs, and interest, resulting in debts which bound them to their labor contractor.   

    For decades, agricultural workers have suffered theft of wages and other abuses related to their jobs. As in the case in Hastings, Farmworker Justice’s litigation team brings cases aimed at ending employers' systemic deprivations of workers' rights.  Abuses associated with labor contractors are widespread. Many farm operators – or “growers” – hope to escape responsibility as “employers” under labor law and immigration law by claiming that their farmworkers are employed solely by the labor contractor. But everyone needs to be held accountable. That’s why Farmworker Justice works with attorneys and other public-interest organizations throughout the country to bring lawsuits to hold the grower jointly responsible with the labor contractor for complying with the minimum wage and other employment laws. We also advocate at the Department of Labor for greater use of the joint employer concept in its wage-hour enforcement. 

  • April 27, 2012

    by Jeremy Leaming

    For what feels like decades, reporters, pundits, and ideologues, mostly on the right, but some on the left, have lauded Supreme Court Justice Antonin Scalia for his wit, pointed oral argument questioning and allegedly brilliant writing. But those plaudits, in light of the justice’s performances during oral argument in cases challenging health care reform and Arizona’s racial profiling law, are wobbly at best, bordering on delusional.

    In reality Scalia increasingly has difficulty, as The Washington Post’s Dana Milbank recently noted, containing his rabid partisanship. It’s unbecoming. During the Affordable Care Act oral argument it appeared, at times, that his only preparation involved reading right-wing blogs railing about the slippery slope to regulations mandating purchases of broccoli and gym memberships. At oral argument in Arizona v. U.S., regarding challenges to several portions of the state’s anti-immigrant law, Scalia “left no doubt from the start that he was a champion of the Arizona crackdown and that he would verbally lacerate anybody who felt otherwise,” Mibank wrote.

    Milbank continued, “Scalia’s tart tongue has been a fixture on the bench for years, but as the justices venture this year into highly political areas such as health-care reform and immigration, the divisive and pugilistic style of the senior associate justice is very much defining the public image of the Roberts Court.”

    And it’s not a flattering image. Not only does Scalia come off as a ringleader of right-wing hacks in robes, he increasingly comes off as clueless or heartless. During the health care oral argument, questions from Scalia and some of the other right-wing justices prompted a string of commentators to question whether the justices understood the health care insurance market.

  • April 26, 2012
    The Immigration Crucible
    Transforming Race, Nation, and the Limits of the Law
    Philip A. Kretsedemas

    By Philip A. Kretsedemas, an associate professor of sociology at The University of Massachusetts Boston

    For the past two years, the national debate over police involvement in immigration enforcement has focused on Arizona Senate Bill 1070. When it was first enacted, SB 1070 was widely criticized for the broad discretion it allowed Arizona police to question people about their legal status. Much of this criticism focused on the problem of immigrant racial profiling. Opponents of the bill argued that it opened the door for the indiscriminate interrogation of anyone who looks like an unauthorized migrant.

    Even though these complaints figured prominently in the public debate over SB 1070, it is rather telling that they have dropped out of the legal arguments that have been marshaled against the bill. One reason for this curious situation is that complaints about racial profiling and selective enforcement have historically been framed as violations of Fourth Amendment rights. But it also so happens that the legal challenge against SB 1070 is being led by the Department of Justice which, for obvious reasons, is not interested in setting legal precedents that would limit the search and seizure power of the police. The Supreme Court, which is currently deliberating over the DOJ's lawsuit against SB 1070, also has a history of favoring the discretionary powers of law enforcement over Fourth Amendment considerations.

    It is important to keep this context in mind when evaluating the legal arguments that are being levied against SB 1070. The DOJ is advancing a finely pitched argument which takes issue with the law making powers of local governments but not the search and seizure practices of law enforcement. It is also bears noting that the DOJ is not opposing local immigration laws on principle. The DOJ supported Arizona's employer sanctions law (penalizing businesses that hire unauthorized migrants) which was subsequently upheld by the 9th Circuit and Supreme Court. The federal government also doesn't seem to be opposed, on principle, to the involvement of police in enforcing federal immigration laws. The Obama administration has actually given state and local police new opportunities to enforce immigration laws. It has only taken issue with local enforcement practices that operate outside of the federal-local enforcement arrangements that have already been authorized by federal law.