By Pratheepan Gulasekaram, Assistant Professor, Santa Clara University School of Law. Professor Gulasekaram teaches Constitutional Law and Immigration. He is currently working on a book with Prof. Karthick Ramakrishnan (political science, U.C. Riverside) on the political and legal dynamics of immigration federalism.
Pro-immigrant advocates – and I count myself among them – will be anxiously listening to oral argument in U.S. v. Arizona, searching for clues as to whether the Court will uphold the preliminary injunction against Arizona’s now-notorious SB 1070. Riding the momentum of district court and appellate court victories, and with the clear weight of precedent and academic opinion on its side, the federal government’s legal case appears sound. For many progressives and immigrant advocates who have been wearily following the recent rise of state and local regulations the case appears to offer the promise of a final resolution to the question whether subfederal jurisdictions can engage in immigration enforcement.
Except, it likely will not provide this anticipated resolution. While a victory for the federal government could establish powerful Supreme Court precedent against subfederal participation, there are at least four reasons why Arizona will not end the contentious national debate and policy battle over state and local involvement in immigration regulation. First, because Justice Kagan has recused herself, there exists a distinct possibility that the case could result in a split 4-4 vote, producing no majority opinion. Second, the district court never enjoined the provision of SB 1070 that announced the state’s intention to make “attrition through enforcement” the policy of the state. Third, the political and legislative dynamics producing this recent proliferation of state and local laws suggest that restrictionist policy activists will not be deterred by the Court’s decision. And, finally, regardless of the result in the case, subfederal jurisdictions can, and in some cases must, participate in enforcement programs condoned by federal law. I briefly elaborate on each of these points below.
Presumably because of her work on the case when she served in the Obama administration, Justice Kagan did not take part in certiorari consideration of the case, and will not participate in the decision. Although her absence will mean little if five justices faithfully follow established precedent and preemption standards to strike down the law, her non-participation opens the possibility of a 4-4 decision. If the Court splits, the decision of the appellate court – in this case, the Ninth Circuit’s affirmance of the District Court’s granting of a preliminary injunction – stands. While this would be a favorable result for opponents of the law, it would not clarify the high court’s position on state and local participation in immigration enforcement. Restrictionist policy activists and receptive elected officials who are promoting laws like SB 1070 all over country will not be deterred by a Ninth Circuit opinion.
Second, even if the case results in a majority opinion upholding the decisions below, one notable provision of the law is not before the Court. Section 1 of SB 1070 clarifies that the law's purpose is to "make attrition through enforcement" a state-wide public policy, and to "discourage and deter" the unlawful entry, presence, and economic activity of unlawfully present persons. In preserving this section, the district court stated "the Court cannot enjoin a purpose; the Arizona Legislature is free to express its viewpoint and intention as it wishes.” As such, the trial court ruling on this section arguably preserved the symbolic and operative idea that states may legitimately pursue deterrent strategies. Accordingly, Arizona may narrowly construe a decision to enjoin the four provisions at issue as indicating that it may not attempt immigration enforcement through those specific means, but may still try to prevent unlawful presence within the state and encourage self-removal through other methods.
Relatedly, recent empirical evidence regarding the dynamics of subfederal immigration policy proliferation strongly suggests that restrictionist activists will use every opportunity left open by the case to continue enacting such ordinances in jurisdictions that are politically receptive, regardless whether those jurisdictions are facing immigration-related public policy problems. In addition, subfederal immigration enactments have not been uniform; while they share many features and are clearly modeled on each other, they also contain slightly different provisions. For example, Alabama’s HB 56, enacted after SB 1070, contains a provision regarding the non-enforceability of contracts entered into with unlawfully present persons, and another provision requiring public schools to collect information about immigration status. A few localities have enacted ordinances that regulate leasing of rental property to unlawfully present non-citizens. An opinion enjoining the four specific sections of SB 1070 at issue likely would not resolve the constitutionality of these other enforcement methods currently enacted in other jurisdictions.
Moreover, those who attempt to proliferate laws like SB 1070 and HB 56 appear mostly undeterred by prior judicial decisions, even ones that directly undermine their policies. For example, Alabama’s law contains a provision requiring public schools to determine the immigration status of enrolled children and their parents, in a clear attempt to discover their presence and discourage their attendance. The state did so despite the Court’s long-standing ruling in Plyler v. Doe that it is unconstitutional for a state to bar or disincentivize undocumented children from accessing a free public school education. Relying on Plyler, a California district court had no trouble enjoining a similar provision in California’s infamous Prop. 187 that tried to accomplish the same goal. It is hard to read HB 56 as anything but a blatant disregard for both of these prior judicial decisions. Thus, it is far from clear that the Court’s opinion in Arizona will significantly slow the strategy of legislative proliferation currently employed by restrictionist policy activists and elected officials.
Finally, even if the case results in broad and effective tamping down of subfederal immigration enforcement proposals, states and localities can and will still participate in federally-permitted enforcement. Although a favorable ruling in Arizona may dissuade unilateral state intrusion into immigration enforcement, as a matter of federal law, states and localities may enter into cooperative 287(g) agreements and, according to the Department of Homeland Security, must participate in the federal Secure Communities program (which requires local law enforcement to share information with federal authorities). In short, opportunities for state and local involvement in immigration enforcement, with far reaching consequences, will persist as long as federal law remains unchanged.
In sum, I stress that my skepticism regarding the practical effects of striking down the provisions of SB 1070 at issue should not diminish the significance of U.S. v. Arizona. I believe the Court should enjoin SB 1070, and that such a result will better the lives of many noncitizens. Ultimately, however, my goal here is to temper my optimism for that result with a caution about the limits of judicial pronouncements to solve the emerging problems of state and local immigration regulation.