Immigration and Citizenship

SB 1070 after the Supreme Court ruling: What happens next?

By Leslie Berestein Rojas


On Monday, the U.S. Supreme Court settled the matter of Arizona v. United States, deciding to preserve a key provision of Arizona’s controversial SB 1070 anti-illegal immigration law while striking down three others. But because the high court was only weighing whether four provisions of the law conflicted with federal law, there is much still left unsettled, and legal wrangling over SB 1070 isn’t due to end any time soon.


The one provision the justices did not strike down was Section 2(B), the most hotly contested provision of SB 1070, which empowers local police to check the immigration status of people they stop, detain or arrest if there is “reasonable suspicion” the person is in the country illegally. The court ruled that, as written, this provision did not conflict with federal law, although it remains to be seen if it will violate federal law in practice.


Much had been riding on the high court’s decision. In states like Georgia, Alabama, South Caroline, Utah and Indiana, all of which have enacted laws inspired by SB 1070, legal challenges are also pending. The ruling is bound to affect how far states choose to go – or not – with their own immigration laws in the future. And the green light given to Section 2(B) has critics of SB 1070 worried about racial profiling, something Arizona v. United States did not address.


So what happens next? Last April, when the justices heard oral arguments, two constitutional law experts, John C. Eastman and Elizabeth B. Wydra, joined me here to help make sense of the arguments and what was to come. Now they’re back to help dissect, from different perspectives, what Monday’s ruling puts to rest and doesn’t, what it implies for the states and more.


Eastman is a professor of law at Chapman University in Orange, Calif., has served as counsel to conservative legislators drafting anti-illegal immigration bills and has worked closely on some proposals with Kris Kobach, the legal author of SB 1070 who is now Kansas Secretary of State. Wydra is chief counsel for the Constitutional Accountability Center, a progressive legal think tank in Washington, D.C. that filed a brief in support of the federal government’s preemption argument.


M-A: What does the Supreme Court’s decision put to rest, and what does it not?


Eastman: States cannot, under the current state of the law, create parallel state crimes for violations of federal immigration law.


But that holding is based on implied preemption doctrine, which means Congress could, if it chose, clarify that it did not intend to preempt state efforts in this area. Particularly in light of the President’s recent wholesale waiver of enforcement/removal of provisions of the existing law, there may be efforts in Congress to do just that. Or, since such a political hot potato, people may kick the can down the road until after November.


Wydra: The injunction preventing sections 3 (creating a state crime for failure to carry immigration documents), 5(C) (creating a state crime for seeking work without immigration documents), and 6 (allowing warrantless arrests when officers suspect a person of being deportable) from going into effect remains in place; the Court held that the federal government established that these sections are “preempted,” or displaced, by federal immigration law.


The Court, however, found that the lower courts erred by preventing Section 2(B) from going into effect without first giving Arizona courts the opportunity to interpret the state law, which could make the section more harmonious with federal enforcement priorities and immigration objectives, and apply it. This is the provision that requires local law enforcement officers to verify immigration status whenever they arrest someone and, when they have simply stopped someone without an arrest, to verify status if they “reasonably suspect” the person to be undocumented.


Contrary to statements made after the ruling by Arizona Governor Jan Brewer and other supporters of the law, the Court did not “uphold” the constitutionality of Section 2(B) and, in fact, expressly left open the possibility of future preemption and other challenges – including racial profiling claims – to Section 2(B).


M-A: So what happens now?


Eastman: Ball is back in the lower courts. Section 2(B) has been upheld (unanimously) against the facial challenge, but Arizona needs to craft an enforcement policy guide so that it passes constitutional muster in implementation.


Wydra: While most observers have followed this case to see whether the Court considered the challenged provisions of SB 1070 to be unconstitutional or not, the precise question before the Court was whether the provisions were “likely” unconstitutional.


When the United States filed suit to block the SB 1070 provisions from going into effect, they asked the Arizona district court for a “preliminary injunction,” which would block the law before the district court held a full trial or briefing on the merits. When the Arizona trial court issued this preliminary injunction, it held that the federal government had shown a “likelihood of success on the merits”: in plain English, the trial court found that the federal government had demonstrated that SB 1070 was likely to be struck down as unconstitutional.


The Ninth Circuit affirmed this ruling. The Supreme Court agreed with the lower courts that the preliminary injunction should remain in place with respect to three out of the four challenged provisions, but did not agree that Section 2(B) should have been preliminarily enjoined.


The case is now “remanded” – or sent back – to the lower courts to proceed with the litigation, with only the three provisions blocked from going into effect. The trial court will then have briefing and argument – maybe even a full-blown trial – on the ultimate goal of the United States’s lawsuit: permanently blocking SB 1070 from going into effect because it conflicts with, or is preempted by, federal immigration law and policy.


With Section 2(B) allowed to go into effect, the federal government may eventually be able to show to the trial court that the provision is being implemented in a way that conflicts with federal enforcement priorities or other law and section 2(B) could be permanently blocked under the preemption argument as well.


M-A: What does this mean for the states? What does it mean in terms of the pending legal challenges in states like Georgia, Alabama, South Carolina?


Eastman: Remember, not only Section 2(B), but several other provisions of the Arizona law were upheld, the latter by the latter courts in parts of the decisions not appealed by the Department of Justice. State crime for transporting or harboring illegal immigrants, for example. Impoundment of vehicles used for such transport. State crime for stopping on the road to hire day laborers. Citizen suits against local election officials who purpose sanctuary city policies. Etc.


Those give the states a number of tools still to use to combat the severe collateral consequences of illegal immigration and the administration’s deliberate under-enforcement policies.


Wydra: It sends a clear message to the states that the federal government, not each of the 50 states, has the authority to make immigration law. The Constitution clearly delegates the power to set immigration law and policy – and to protect the equal rights of both citizens and non-citizens within our borders – to the federal government. Justice Kennedy’s majority opinion affirmed this constitutional truth.


States can, to the extent consistent with federal law, cooperate with the federal government in the realm of immigration law, but they cannot set their own immigration policies.


M-A: Do you think it will discourage or encourage similar measures?


Eastman: I think whichever way the court ruled, there were going to be more efforts to deal with the consequences of illegal immigration, because those decisions are driven by necessities on the ground and duties of local officials to protect the citizens and lawful residents who live within their jurisdictions.


Wydra: I hope that state politicians will heed the Supreme Court’s warning that they cannot tread on the federal government’s constitutionally delegated power over immigration law and stop pushing measures like SB 1070. They are a waste of time and resources, and conflict with quintessentially American values of openness, equality, and basic fairness. We are a country of immigrants, and our diversity should be a source of strength not suspicion.


M-A: What other legal challenges do you see ahead? Civil rights lawsuits? Lawsuits targeting police agencies for not enforcing the law? What we might anticipate next?


Eastman: Yes, civil rights lawsuits claiming racial profiling. Or claiming that the investigative detentions permitted under Section 2(B) lasted too long. And, on the other side, citizen suits against the sanctuary city efforts.


As to the former, whether these ultimately succeed in striking down Section 2(B) entirely, or just in particular “as-applied” cases, will be where the next interesting development will come.


Wydra: There will very likely be lawsuits that allege that Section 2(B)’s “papers, please” provision is being enforced in a discriminatory way, for example, by relying on racial profiling.


While the law declares that it shall not be implemented in a way that violates civil rights, the requirement that officers verify the status of anyone they stop – for speeding or jaywalking, for example – if they have a “reasonable suspicion” that the person is an undocumented migrant could very easily spill over into impermissible profiling. How does a suspect act like an “illegal alien?” Governor Brewer has been touting the SB 1070 training that officers have gone through, but I have yet to see a good answer.


In addition, the Supreme Court expressly left open the possibility that the federal government could come back into court after the “papers, please” provision goes into effect to re-argue its position that the law conflicts with, and thus preempted by, federal law and policy. The Court essentially said it needed more information to know whether Section 2(B) would be enforced in a manner that conflicts with the delicate balance of priorities the federal government must take into account when implementing immigration law, including foreign relations, humanitarian concerns, and efficient use of resources. Once Section 2(B) goes into effect, the federal government will have more information as to whether Arizona’s “attrition through enforcement” policy does in fact conflict with federal law, which I think it does.


In order for Arizona to achieve the “self-deportation” that is the goal of an “attrition through enforcement” policy, the state must create such a hostile environment for migrants that they would rather flee the state than live in it. It is difficult to see how such aggressive enforcement does not step on the toes of the federal government’s discretion over immigration law and the way in which it is implemented. The Constitution clearly intends for the nation to speak with one voice when it comes to immigration – and that voice belongs to the federal government, not Arizona or any other state.


Civil rights and profiling concerns have a focal point of other challenges to SB 1070. Here’s an analysis from earlier this week of what the Supreme Court’s decision did and didn’t put to rest.


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