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.
Furthermore, it is entirely appropriate to consider these types of issues in an immigration preemption case. Indeed, in the seminal 1941 case of Hines v. Davidowitz, which involved a Pennsylvania state law that (like part of S.B. 1070) concerned the registration of aliens, the Court specifically invoked concerns about harassment and the “repeated interception and interrogation” of non-citizens as reasons to find the state law preempted by federal law.
Third, and finally, it is important to remember that the Supreme Court’s decision in this case is only one piece of the larger picture, whether we’re talking about S.B. 1070, or the broader phenomenon of state anti-immigration legislation. Regardless of the Supreme Court decision, states across the country are already deciding that anti-immigration legislation modeled after S.B. 1070 is simply bad policy. Not one S.B. 1070 copycat has been enacted in 2012. As these laws’ impact becomes clearer, voters and legislators in other states are refusing to go down the same shortsighted and self-destructive path to stagnation as Arizona and the other five states that followed its misguided lead.
It turns out that rotting crops, terrorized families and divided communities are a hard sell.