Face It: SB 1070 Is about Race

http://prospect.org/article/face-it-sb-1070-about-race<http://prospect.org/authors/garrett-epps>

Garrett Epps <http://prospect.org/authors/garrett-epps>

April 25, 2012

The Supreme Court pulls Arizona’s anti-immigrant bill apart like a Barbie.
Will they reassemble it or throw it away?
      <http://ox-d.prospect.org/w/1.0/rc?ts=0c2lkPTg0OTh8YXVpZD05MjY3OHxwaWQ9MTAwNDJ8YWlkPTM0NDI1NXxwdWI9MTE2MTN8bGlkPTE4MTQzOXx0PTF8cmlkPWYyODNiYTFhLWIxNjktNDM3NS05MDI0LTg0MTg3NzUyMWU5YnxvaWQ9NTYyNzJ8Ym09QlVZSU5HLkdVQVJBTlRFRURTSEFSRU9GVk9JQ0V8cD0xMDAwMHxwYz1VU0R8YWM9VVNEfHBtPVBSSUNJTkcuQ1BNfHNzaWQ9ODg3N3xydD0xMzM1NTU2NTEyfHByPTEwMDAwfGFkdj00NDk4Nw>

“Before you get into what the case is about,” Chief Justice John Roberts
told Solicitor General Donald Verilli at the beginning of the government’s
argument in* United States v. Arizona, *“I’d like to clear up at the outset
what it’s not about. No part of your argument has to do with racial or
ethnic profiling, does it? I saw none of that in your brief.”

A non-lawyer might be puzzled. The case, argued Wednesday, is testing the
constitutionality of part of Arizona’s S.B. 1070, a statute that seeks to
drive undocumented immigrants out of the state by rigid law enforcement.

S.B. 1070, passed in a state that borders Mexico, will bring about many
more stops and detentions of brown-skinned people, citizens or not. But the
government chose not to argue that issue in its brief, and Verilli agreed
that the profiling issue was off the table.

The government’s argument, taken as a whole, is this: The Constitution
gives the federal government exclusive authority over immigration and
naturalization. That was done because immigration concerns foreign affairs,
and the states can’t have their own foreign policies. The U.S. can only
deport 400,000 aliens a year, and the federal government, entrusted by
Congress with discretion, has chosen to focus on violent criminal aliens;
by permitting Arizona to arrest, detain, and imprison those who would
otherwise not be charged under federal law, S.B. 1070 attempts to force the
United States to adopt Arizona’s policy of maximum enforcement. In
addition, the working of Arizona’s statute will lead to widespread
discrimination against some citizens, and against nonresidents who have a
right to remain in the U.S. It will also create serious foreign policy
problems with Mexico.

Arizona’s case, in essence, is this: Our state deals with a
disproportionate number of illegal border-crossers. The federal government
won’t or can’t control the borders, and we are left to deal with increased
problems of crime and of illegal aliens taking jobs away from our citizens.
We have created a program that simply uses existing federal requirements
and gives our police officers a role in enforcing them.

The challenged portions of S.B. 1070 are:

   - Section 2(B), which provides that during any lawful “stop, detention
   or arrest,” state law enforcement officers who have “reasonable suspicion”
   that the person stopped is an unauthorized alien “shall” make a reasonable
   attempt to determine immigration status, unless doing so will “hinder” the
   investigation. After an arrest, “[a]ny person who is arrested shall have
   the person’s immigration status determined before the person is released.”
   Verification is to come from federal authorities, and state detention
   pending verification is mandatory. The language of the statute seems to say
   that an individual arrested must be detained even if the state drops the
   charge that led to the arrest.
   - Section 3, which makes it a state crime to fail to register with the
   federal government as an alien and carry those registration documents.
   (Federal law already requires both.) It does not apply to “a person who
   maintains authorization from the federal government to remain in the United
   States.”
   - Section 5(c), which makes it a state crime for undocumented aliens “to
   knowingly apply for work, solicit work in a public place, or perform work
   as an employee or a contractor.” (Federal law currently imposes no penalty
   on aliens who work or seek work.)
   - Section 6, which empowers state law enforcement to arrest without a
   warrant any person if the officer has probable cause to believe that “the
   person to be arrested has committed any public offense that makes the
   person removable from the United States.”

The provisions form a whole, which is aimed at jailing the undocumented:
2(B) requires police investigate the immigration status of people stopped
for other crimes. If they turn out to be undocumented, they may then be
sent to prison under Section 3 for not carrying registration papers they by
definition can’t have. If they have jobs, they can also be imprisoned for
violating 5(c). Section 6 expands the power to detain because a person may
once have committed a crime in another state—even if that person has served
a full sentence, and even though the person is legally in the United States
because the federal government waived deportation. Being “removable,” in
and of itself, is not a state or federal crime.

But Judges are like young kids playing with Barbies: they like to pull
things apart and play with different parts. So the Court treated each
provision as if it were independent of the others. They discussed Section 2
only in connection with the arrest—how long would a “suspect” be held?
Remarkably, Justice Stephen Breyer suggested reinterpreting the statute to
save it: “Can I make the following statement in the opinion ... ‘We
interpret ... Section 2(B) as not authorizing or requiring the detention of
any individual under 2(B), either at the stop or in prison, for a
significantly longer period of time than that person would have been
detained in the absence of 2(B).’” (The answer is no: a federal court has
no power to narrow or limit a state statute; Breyer’s construction would
have, as far as I can tell, no effect).

Breyer and Justices Samuel Alito and Sonia Sotomayor worried that the 2(B)
verification requirement would result in detention of American citizens who
just happened to be out without papers—jogging, Breyer suggested, with
nothing but a bottle of Pedialyte. Justice Sotomayor asked Verilli whether
the federal databases included a list of all citizens. She dryly alluded to
the forbidden topic of profiling: “Today if you use the names Sonya
Sotomayor, they would probably figure out I was a citizen. But let's assume
it's John Doe, who lives in Grand Rapids.” No, Verilli said; there is a
list of passport holders, but if you don’t have a passport, the state
inquiry will come back with nothing—the same reading as if you were
undocumented.

The Justices fretted that Section 3 imposes criminal sanctions that
duplicate federal laws. Section 5 conflicts with federal policy: In 1986,
Congress imposed civil and criminal penalties on employers who knowing hire
undocumented aliens, but chose not to penalize undocumented workers. Can
Arizona in effect adopt the policy Congress rejected? Finally, Section 6
might require local officers to engage in a tricky inquiry about whether an
out-of-state offense is one for which “removal” is required.

Verilli tried to direct the Court’s attention to the overall effect of
1070. “[Y]ou’re going to have a situation of mass incarceration of p[people
who are unlawfully present. That ... poses a very serious risk of raising
significant foreign relations problems. And these problems are real.”
Justice Scalia had a ready answer for that one: “[C]an’t you avoid that
particular foreign relations problem by simply deporting these people? ...
[W]e have to enforce our laws in a manner that will please Mexico. Is that
what you’re saying?”

Scalia asked Verilli why Arizona can’t have its own immigration policy:
“What does sovereignty mean if it does not include the ability to defend
your borders?”

Verilli responded, “[t]hey cannot do what Arizona is seeking to do here,
Your Honor, which is to elevate one consideration above all others.”

Justice Samuel Alito focused on dismembering the “federal discretion”
argument. This is a case of federal pre-emption, and pre-emptive power has
to be exercised by Congress, he said. But Verilli was arguing pre-emption
because S.B. 1070 worked against *executive* priorities. “Suppose that the
federal government changed its priorities tomorrow... . Would the Arizona
law then be un-preempted?” It was Congress, Verilli responded, that
explicitly gave the executive the power to set those priorities.

With Justice Elena Kagan conflicted out, the Court may strike some sections
and affirm the rest. On some points it may divide 4-4, affirming the lower
court opinion that struck them down. That would leave those issues to be
settled another day.

Some of those have already been raised in civil rights suits pending below
brought by advocacy groups who are not afraid to point out what everybody
knows: Ethnic profiling is at the heart of 1070 and other state laws like
it. Can “driving while brown” be made a state crime?


-- 
-Laye
==============================
"With fair speech thou might have thy will,
With it thou might thy self spoil."
--The R.M


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