Supreme Court's Immigration Decision Unlikely to Ease Immigrants' Concerns

When people in my piece of Arizona fret about Arizona's SB 1070 — the immigration law trimmed to fit by the U.S. Supreme Court's decision in Arizona v. United States (PDF) — the issue that comes up most often is fear of being pulled over and questioned by the police. It's not that the other provisions aren't important, but immigrants mostly encounter the law in the form of flashing blue and red lights in the rearview mirror and awkward conversations by the side of the road. The Supreme Court struck down several of the law's provisions, but left intact the requirement that police officers inquire into immigration status. It's hard to see the climate for immigrants changing much in Arizona with the prospect of police stops and status checks left in place.

Again, the Supreme Court struck down important provisions of the law. Section 3 had criminalized failure to comply with alien-registration requirements, on the grounds that the law "intrudes on the field of alien registration, a field in which Congress has left no room for States to regulate." Section 5(c) made it a misdemeanor for illegal immigrants to look for or perform work in Arizona — a step too far, said the court, because "Congress decided it would be inappropriate to impose criminal penalties on unauthorized employees. It follows that a state law to the contrary is an obstacle to the regulatory system Congress chose." And Section 6 let Arizona cops arrest anybody "the officer has probable cause to believe … has committed any public offense that makes the person removable from the United States" — again overextending state authority because "As a general rule, it is not a crime for a removable alien to remain in the United States" and it's the federal government's prerogative to make such an offense arrestable or not arrestable.

But that leads those much feared ad hoc immigration-status interrogations by the police, based in Section 2(b), which reads:

For any lawful contact made by a law enforcement official or a law enforcement agency of this state or a law enforcement official or a law enforcement agency of a county, city, town or other politicial 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, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person's immigration status determined before the person is released.

The Supreme Court's majority ruled that this section of the law should stand, at least for now, because "[i]t was improper to enjoin §2(B) before the state courts had anopportunity to construe it and without some showing that §2(B)'s enforcement in fact conflicts with federal immigration law and its objectives." The provision may be open to further litigation depending on how it's applied, but the majority saw no inherent conflict with federal law.

But "lawful contact" is, of course, a wide-open standard in an age when even a casual drive can turn into an opportunity to say hello to your local law-enforcement officers who have access to a host of rules and regulations providing opportunities for "pretext stops." As the Corvallis Gazette-Times reported five years ago, "civil rights advocates argue that problems can arise because police have such wide latitude in enforcing traffic laws that, if they really want to, they can pull virtually anyone over at any time."

In Maricopa County, in particular, Sheriff Joe Arpaio and his deputies have been so enthusiastic in their efforts to root out anybody who might be in the country illegally, that they got tagged by the U.S. Department of Justice for taking racial profiling into bold new ground.

I've written before that Maricopa County has become a no-go zone for many of my wife's patients, legal or illegal, who so fear a police encounter that they forego opportunities to take their children to medical specialists in the Phoenix area. With the National Immigration Forum warning that the "Supreme Court upholds pointy end of the sword of Arizona's immigration law," and with Governor Jan Brewer, a booster of the law, calling the decision a victory, there's no reason to believe those fears will disappear any time soon.