Arizona v. U.S.

  • November 16, 2012

    by Jeremy Leaming

    Justice Antonin Scalia, in his concurring/dissenting opinion in last term’s decision on Arizona’s anti-immigrant law, offered some unusual statements about Arizona’s need for such a ridiculously rigid immigration law, and even took a swipe at President Obama’s executive policy stopping deportations of some undocumented immigrants.   

    According to Scalia, Arizona was suffering from a deluge of undocumented immigrants. “Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy.” But he did not stop there and advanced another rightwing talking point for justifying wobbly and harmful state action on immigration. It’s all the federal government’s fault, he said. “Federal officials have been unable to remedy the problem, and indeed have recently shown they are unwilling to do so.”

    It’s this mentality – undocumented persons are flooding states from coast to coast, using up scarce state resources and because the federal government won’t act, state lawmakers will – that undergirds laws like Arizona’s SB 1070 that also promote racial profiling and undermine all citizens’ rights.

    In a just released ACS Issue Brief, Pratheepan Gulasekaram and S. Karthick Ramakrishan not only take Justice Scalia to task for failing to “provide sources for these seemingly crucial truths,” but reveal a study of 50 states and more than 2,5000 localities that show “political affiliation was the most significant factor in explaining” the enactment of laws like Arizona’s SB 1070.

  • June 27, 2012
    Guest Post

    By Pratheepan Gulasekaram & Karthick Ramakrishnan. Prof. Gulasekaram teaches Constitutional and Immigration Law at Santa Clara University, and Prof. Ramakrishnan teaches in the Political Science department at University of California, Riverside.  The empirical work referenced in this post is part of a co-authored book project exploring the political genesis and legal implications of state and local immigration laws.


    Defiant in his Arizona v. U.S. dissent, Justice Antonin Scalia posits a surprising theory of immigration law, arguing that even in modern constitutional interpretation, an individual state can exclude persons from entering its borders and can have its own immigration policy. His novel theory appears to rest on assumptions about the demographic “facts” of unauthorized immigration and the public policy problems ostensibly faced by Arizona.  He confidently maintains that the state “bears the brunt of the country’s illegal immigration problem,” and follows that suggestion with several other claims regarding the “siege” that citizens may feel when illegal immigrants invade property, use social services, and endanger citizen lives.

    Quite rightly, Judge Richard Posner of the Seventh Circuit took Scalia to task for these unsupported statements in a recent article for Slate.

    But Scalia is not alone in making these unproven assumptions about the relationship between immigration-related demographic change, the public policy concerns created by that change, and the necessity of state and local response. Indeed, both former Arizona governor Janet Napolitano (now, Secretary of the Department of Homeland Security) and her successor Jan Brewer cited the unique issues faced by Arizona as justifications for the state’s mandatory E-Verify law and SB 1070.  Even Justice Anthony Kennedy, in the first sentence of his majority opinion in Arizona, presumes that the state enacted SB 1070 to address the “pressing issues” related to a large population of undocumented immigrants. 

  • June 26, 2012
    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.

  • 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.