Commentary

SCOTUS Arizona Immigration Law Ruling: Expect More SB 1070 Lawsuits to Come

The Supreme Court (SCOTUS) announced on Monday that one out of the four provisions under consideration in the Arizona immigration law can go forward and become law. The upheld portion of the law, the controversial so-called “papers please” provision, requires police officers in Arizona to attempt to determine the immigration status of persons they stop if the officers have “reasonable suspicion” that the person is unlawfully present in the U.S.

This SCOTUS decision was about preemption, the notion that Arizona’s law impinged on the federal power to regulate immigration. While certainly important as a matter of federalism, other upcoming cases will determine more interesting issues of individual liberties and rights as enshrined in the Bill of Rights.

“Whatever happens at the Supreme Court, this is just the first inning in a very long ballgame,” said Karen Tumlin, managing attorney in the Los Angeles office of the National Immigration Law Center. Ms. Tumlin is one of the lead attorneys in the Friendly House v. Whiting case, another Constitutional challenge to the Arizona law that is working its way through the courts.

This lawsuit claims the Arizona immigration law violates the constitutional guarantees of equal protection of the law, due process, and protection against unreasonable searches and seizures. It was brought forward by nine individual and 14 immigrant aid and civil rights organizations. Other lawsuits pending challenge the Arizona immigration law on grounds that it will cause racial discrimination and that it violates the First and Fourth Amendments.

The Constitution does not prohibit Arizona from passing unwise laws, just those that violate the Constitution. The Arizona immigration law is unquestionably bad policy but most of it is constitutional. In the near future, thanks to this ruling, we will find out what other parts of the Arizona law are permissible.

The federal government also cancelled the 287(g) program with Arizona in what is largely a symbolic move. The program trained local police in enforcing immigration laws but has been virtually defunct. Instead, Secure Communities, a more effective immigration enforcement program, has been responsible for the vast increase in deportations over the last four years. Secure Communities is still in effect in over 2700 jurisdictions in the U.S, up from 14 in October 2008.

Ultimately the responsibility for resolving the immigration stalemate rests with the federal government. Only real immigration reform that takes account of the enormous demand for foreign workers and the desire of potential immigrants to work and live here will resolve unauthorized immigration. The SCOTUS opinion highlighted just how little can be done on a state level and how much must be liberalized for the federal government to solve this problem.

Alex Nowrasteh is the immigration policy analyst at the Cato Institute’s Center for Global Liberty and Prosperity.