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.
It's also notable that, when concerns about the supremacy of federal law are not an issue, the Obama Administration has taken a strong stance in favor of police discretion. The most striking recent example is the Obama Administration's endorsement of the Supreme Court's decision on Florence v. Board of Chosen Freeholders, which ruled that conducting blanket strip searches of people without individualized suspicion did not constitute a violation of Fourth Amendment rights. The same priorities are reflected in federal court rulings on other cases that deal specifically with the role of police in enforcing immigration laws.
In Muehler et.al. v. Mena, for example, the Supreme Court upheld the legality of the police detainment of a naturalized citizen on suspicion that she might have been an unauthorized migrant. Even though this decision is pertinent to the legal opinion on Fourth Amendment rights and racial profiling, it was of little consequence for the debate over local immigration laws. The detainment of Iris Mena was carried out under the auspices of a federal-local enforcement partnership that abided by the 287(g) provisions of the 1996 Immigration Reform Act (IIRIRA).
The 10th Circuit Court's decision on U.S. v. Vasquez-Alvarez is more pertinent because it upheld the authority of the police to carry out similar kinds of legal screenings, without the oversight of federal authorities and outside of the context of a criminal investigation. This is probably why the 9th Circuit Court's decision on SB 1070 took issue with the 10th Circuit Court's reasoning on Vasquez-Alvarez. It bears noting, however, that the 10th Circuit Court's decision was issued prior to the recent expansion of local immigration laws, which began in 2004. So it could be argued that the 10th Circuit's decision only affirmed the authority of individual police officers to enforce federal immigration laws as stipulated by the federal government-but that it did not authorize state and local governments to create their own mechanisms for involving the police in immigration enforcement.
This kind of reasoning complements the argument that has been advanced by the DOJ. It is also consistent with the way that these decisions are often viewed in immigrant rights circles, which tend to focus on their implications for legal opinion on local immigration laws. Decisions that are weak on Fourth Amendment rights can still be viewed as "positive" (or as "not so bad") as long as they don't validate or expand the inherent authority of state and local governments to enact immigration laws. As a result, the debate over local immigration laws and Fourth Amendment considerations can be treated as if they belong to two entirely separate bodies of legal opinion.
But of course, this is not actually the case. Local immigration laws pose problems not just because they target immigrants or "illegals" but because they authorize enforcement practices that infringe on the Fourth Amendment rights of all U.S. residents, regardless of legal status. This is one of the main points of the racial profiling complaints that were raised against SB 1070. It is not possible to situate this dilemma in a rights framework unless you are prepared to see how it affects both citizens and noncitizens.
The problem with the legal argument against SB 1070 is that it sidesteps these sorts of concerns. Federal supremacy arguments limit the debate over SB 1070 to the terrain of immigration law and concerns about the law-making powers of federal and local governments. This approach also dovetails with the plenary power that the Executive exercises over noncitizen rights. It reinforces the idea that the federal government exercises a sovereign authority over immigration law that is not shared by state and local governments. So it follows that the immigration law-making powers of local governments can be expanded or limited at the discretion of the federal government, the same way that the federal government can expand or limit the scope of noncitizen rights.
The ingenuous thing about this argument is that it may succeed in protecting immigrants where a strong Fourth Amendment argument might otherwise fail, given the history of recent Supreme Court decisions on these matters. But this doesn't change the fact that it works in the opposite direction of a typical "rights argument." It affirms the power that the federal government wields over the law, instead of affirming a body of rights that are supposed to define the reasonable limits of this power. The end result is a legal argument that protects immigrants, without protecting immigrant rights-and which ignores the fact that the "immigrant rights" that will be violated by SB 1070 are actually constitutional rights.