SB 1070

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.

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.