Immigration

  • 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
    BookTalk
    The Immigration Crucible
    Transforming Race, Nation, and the Limits of the Law
    By: 
    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.

  • 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.