Analysis: Supreme Court declines to overturn Arizona’s mandatory immigration verification
Although the U.S. Supreme Court rejected the bulk of Arizona’s immigration law, the court has allowed Section 2(b) of S.B. 1070 to stand, citing insufficient evidence presented thus far that the provision’s mandatory immigration status checks would lead to prolonged detention or racial profiling.
“There is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume Section 2(b) will be construed in a way that creates a conflict with federal law,” stated the court’s majority opinion in Arizona v. United States.
The court’s ruling, however, does not rule out future legal challenges to Section 2(b) if the provision’s enforcement does lead to racial discrimination against Latinos, “unnecessary harassment” of people based solely on their race, color, or national origin, or prolonged detention in violation of the Fourth Amendment.
The Justice Department will “closely monitor” the impact of S.B. 1070 to make sure that the law does not violate the civil rights of Latinos and other people of color.
“As the Court itself recognized, Section 2 is not a license to engage in racial profiling and I want to assure communities around this country that the Department of Justice will continue to vigorously enforce federal prohibitions against racial and ethnic discrimination,” said Attorney General Eric Holder.
Gov. Jan Brewer (R-Ariz.) praised the court’s decision, saying that the “heart of Senate Bill 1070 has been proven to be constitutional.”
“The key components of our efforts to protect the citizens of Arizona to take up the fight against illegal immigration in a balanced and constitutional way has unanimously been vindicated by the highest court in the land,” said Brewer.
Section 2(b) of S.B. 1070 would require Arizona’s law enforcement officials to check the immigration status of anyone they stop, detain or arrest if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Any person arrested cannot be released until his or her immigration status has been verified with Immigration and Customs Enforcement (ICE).
The Justice Department objected to Section 2(b), arguing that mandatory status verification could lead to longer-than-necessary detention of individuals stopped or arrested by police in violation of the Fourth Amendment.
For example, police could abuse Section 2(b) to justify stopping or detaining Latinos (citizens and non-citizens alike) for minor infractions – such as jaywalking – just to check their immigration status.
Although the Supreme Court has acknowledged that “detaining individuals solely to verify their immigration status would raise constitutional concerns”, the court declined to block the provision from being implemented, citing lack of evidence that Section 2(b) would result in prolonged detention.
“Even if the law is read as an instruction to complete a check while the person is in custody, moreover, it is not clear at this stage and on this record that the verification process would result in prolonged detention,” wrote Kennedy.
Furthermore, Kennedy suggested that Section 2(b) does offer some safeguards against prolonged detention. Kennedy interpreted the “reasonable attempt” and “practicable” clauses to mean that police officers may not detain an individual stopped for jaywalking just to perform an immigration status check.
“Unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry,” he wrote.
Text of Section 2(b) of S.B. 1070:
“For any lawful contact made by a law enforcement official or agency of this state or county, city, town or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person. The person’s immigration status shall be verified with the federal government pursuant to 8 United States Code Section 1373C.”
- SupremeCourt.gov: Arizona v. United States opinion issued on June 25, 2012 (PDF)
- WhatTheFolly.com: Supreme Court invalidates bulk of Arizona’s immigration law
- WhatTheFolly.com: Analysis: Why the Supreme Court struck down 3 provisions of Arizona’s immigration law
- WhatTheFolly.com: Justice Department sues Maricopa County Sheriff for discriminating against Latinos
- WhatTheFolly.com: Transcript: Arizona Gov. Jan Brewer on the Supreme Court’s decision to strike down most of the state’s immigration law on June 25, 2012
- WhatTheFolly.com: Statement of Attorney General Eric Holder on the Supreme Court’s ruling on Arizona v. United States