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SB 1070

August 24, 2012
A Bad Day at the Office for Immigration Restrictionists
Guest Post

By Gabriel J. Chin and Marc L. Miller. Chin is Professor of Law at the University of California, Davis, School of Law. Miller is Vice Dean and Bilby Professor of Law at the University of Arizona, James E. Rogers College of Law. They authored “The Unconstitutionality of State Regulation of Immigration through Criminal Law,” which recently appeared in the Duke Law Journal and addresses these arguments, and others, in more detail. The views expressed are solely those of the authors.

On August 20, the other shoe dropped. After Arizona’s systematic defeat in Arizona v. United States, rejecting the most important parts of SB1070, the question became how courts would treat the many other state laws on the books dealing with immigrants. If a trio of cases from the Eleventh Circuit is any indication, federal courts will read Arizona v. United States as severely limiting state authority to legislate in the area of immigration.

The three opinions were written by the same panel, and largely affirmed or expanded injunctions issued by district courts. Two cases involved Alabama’s HB56, Hispanic Interest Coalition of Alabama v. Governor of Alabama and United States v. Governor of Alabama. The third case, Georgia Latino Alliance for Human Rights v. Governor of Georgia, examined Georgia’s HB 87. The laws had some of the same features as SB1070, and the Eleventh Circuit necessarily treated those as did the Supreme Court. The decisions allowed Georgia and Alabama to investigate the immigration status of people stopped or arrested, but, like the Supreme Court, left open the possibility of as-applied challenges based on racial profiling or unlawful seizures. The Eleventh Circuit also struck down Alabama’s prohibitions on undocumented people seeking work or failing to carry immigration documents, just as the Supreme Court had.

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Civil rights, Federalism, Supreme Court, Other courts, Immigration, Racial justice, Constitutional Interpretation and Change, Criminal Justice, Equality and Liberty, Separation of Powers and Federalism, Arizona v. United States, Guest Post, HB 56, HB 87, SB 1070
August 22, 2012
Another Blow to Racial Profiling Laws
Guest Post

By Karen Tumlin, managing attorney for the National Immigration Law Center

Taken together, the 11^th Circuit Court of Appeals decisions on the cases against Alabama and Georgia’s immigration laws represent a few additional nails in the anti-immigrant law coffin. Although the court decided not to block for now the damaging provisions authorizing police to demand “papers” from those they suspect of being in the country without authorization, the majority of Alabama’s law has been stopped, and one damaging provision of Georgia’s law will not be allowed to take effect.

Georgia’s law, which was challenged only by civil rights organizations, is narrower in scope than Alabama’s, but was written with the same goal in mind: to make life so miserable for immigrants and their families that they leave the state. HB 87, as Georgia’s law is known, would have created a series of state crimes to penalize those who house or drive with undocumented immigrants. From a practical perspective the impact of this law is clear: a U.S. citizen son of an undocumented mother, for example, would commit a criminal act if he were to take his mother to the grocery store to buy milk. The 11^th Circuit rightly recognized that Georgia overstepped its bounds by creating a series of crimes that do nothing more than criminalize everyday neighborly acts in a domain that remains in exclusive federal territory.

Alabama’s law, HB 56, has been called “Arizona’s SB 1070 on steroids,” and for good reason.
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Civil rights, Other courts, Immigration, Racial justice, Criminal Justice, Economic, Workplace and Environment Regulation, Equality and Liberty, Guest Post, SB 1070
June 26, 2012
The Madness of Justice Scalia
by Jeremy Leaming

For what seems like decades a conventional wisdom, built largely by a handful of Supreme Court correspondents, has held that Justice Antonin Scalia is the high court’s most brilliant, disciplined, albeit ideological, member. He is also, according to this conventional wisdom, deliciously witty.

But thankfully, the Web has altered the narrative by giving forums to an array of writers who have been quick to poke holes in an increasingly tiresome and shoddy line of reporting. (It should be noted, however, that longtime Supreme Court correspondent Linda Greenhouse is not among the gaggle that built the fawning picture of a straight-shooting justice with a jolly wit. Indeed Greenhouse has taken Scalia’s sloppy work to task on numerous occasions.)

Moreover the aging Scalia is simply not helping to advance the conventional wisdom. Though in fairness, he hardly seems concerned with what reporters, bloggers think or write about him. His constituency is made up of right-wing politicos and activists. He’s the Koch brothers’ justice.

With each passing high court term, Scalia seems to becoming wackier, more out-of-touch, increasingly shrill. And he’s being called out for his nuttiness with growing frequency.

In a piece for Salon, Paul Campos, for instance, is not mincing words about the tottering justice. Scalia, Campos writes, “has in his old age become an increasingly intolerant and intolerable blowhard: a pompous celebrant of his own virtue and rectitude, a purveyor of intemperate jeremiads against the degeneracy of the age, and now an author of hysterical diatribes against foreign invaders, who threaten all that is holy.”

Campos was referring to Scalia’s concurring, dissenting opinion issued in Arizona v. U.S. where a majority of the justices invalidated three provisions, and weakened a fourth, of Arizona’s harsh anti-immigrant law. In his opinion Scalia not only railed against alleged dangers undocumented persons pose to Arizona, but also ruminated about state sovereignty and took a shot at President Obama’s actions on immigration policy.

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Originalism, Supreme Court, Immigration, Adam Winkler, Arizona v. United States, Justice Antonin Scalia, Linda Greenhouse, Michael Tomasky, Paul Campos, SB 1070, Walter Dellinger
June 26, 2012
Arizona v. U.S. & SB 1070: Baking Discrimination into Immigration Policy
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.

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Federalism, Supreme Court, Preemption, Immigration, Constitutional Interpretation and Change, Economic, Workplace and Environment Regulation, Separation of Powers and Federalism, Arizona v. U.S., Chamber of Commerce v. Whiting, Guest Post, SB 1070
June 25, 2012
High Court’s Mixed Action on Arizona’s Anti-Immigration Law
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.”

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Supreme Court, Preemption, Immigration, ACS 2012 Convention, Arizona v. United States, Caroline Fredrickson, SB 1070, show me your papers