The Supreme Court's Ruling is No Victory for Anti-Immigrant Warriors in Arizona

Judging just by the headlines on the Supreme Court’s ruling on Arizona’s SB 1070, the Wall Street Journal (“Supreme Court Upholds Key Part of Arizona Law”) is spinning it as something of a victory and the liberal Los Angeles Times (“Supreme Court Issues Split Decision on Arizona Immigration Law”) as something of a defeat for the anti-immigrant camp.

My own quick and dirty take based on skimming the ruling is that it is really more of a defeat than a victory.

The court upheld, 5-3, the so-called “your papers please” provision that authorizes state police officers to inquire into the immigration status of people stopped for some other crime if a reasonable suspicion exists that they may be here illegally. But it struck down provisions that made it a crime for immigrants -- legal and illegal -- to fail to carry their registration papers and for illegals to seek work. It also barred state authorities from arresting any immigrant they believed had committed a deportable offense.

This means that state authorities can stop, question and briefly detain immigrants they believe are here illegally. But unless the feds – who the court affirmed have the ultimate authority to write immigration law -- authorize the continued detention of these folks, they would have to be released. State authorities, in other words, can continue to harass immigrants, but not to do really serious damage to them -- unless, of course, they are Joe Arpaio and don’t care about what no stinkin justices in black robes have to say.

All of this makes constitutional sense. Given that the constitution gives the feds – not states -- the ultimate authority to write immigration law, state laws that are consistent with federal law can stand. When they are in conflict, they are “pre-empted.” Federal law requires immigrants to carry their papers (something that I was not even aware of in the decade or so that I lived in this country on a green card because it was never enforced). Hence, Arizona asking for immigrants to produce their papers is not unconstitutional. However, federal law does not make it a crime for immigrants to not carry their papers– and in making it one, Arizona overreached.

But just because “your papers please” provision is not pre-empted by federal law doesn’t mean that it is constitutional in every respect. The court’s liberal justices joined by Justices Kennedy and Roberts left open the door to future legal challenges to that provision, presumably on equal protection grounds. That’s because the only people who are likely to raise “reasonable suspicion” of being in the country illegally are not white-skinned folks speaking “American” – but brown-skinned folks with an accent. (Full disclosure: I am a naturalized citizen in the latter camp, although I, mercifully, don't live in Arizona and unless this law is scrapped in toto would never consider moving there.) Hence, racial profiling is built into the law and once its opponents have amassed enough evidence of its discriminatory nature, the court virtually invited them to come back and have the law thrown out.

This means that unless Congress fixes our broken immigration system, the immigration wars will continue in the courts for a while.

Here is Ilya Shaprio of Cato’s legal analysis of the ruling.

Here is the full ruling, complete with separate dissents by Justices Scalia, Thomas and Alito.

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  • Alex||

    Given that the constitution gives the feds – not states -- the ultimate authority to write immigration law

    It does? Where?

  • o3||

    axe SCOTUS

  • GW||

    Article I, Section VIII. Congress has the power to regulate Naturalization.

  • ant1sthenes||

    But AZ isn't claiming the power to grant or take away citizenship, only to expel those who do not possess it.

  • GW||

    Oh, I agree. I honestly don't see the conflict in this law.

  • Tulpa the White||

    Shikha Dalmia is not bound by your narrow minded obsession with facts and evidence.

  • Tulpa the White||

    ^-------- stretch

  • niobiumstudio||

    Article VI Clause 2

  • GW||

    Ummm no.

  • John||

    That’s because the only people who are likely to raise “reasonable suspicion” of being in the country illegally are not white skinned folks speaking “American” – but brown-skinned folks with an accent.

    No shit. People who are suspected of not being in the country legally are generally not Americans. How the hell are you supposed to enforce any immigration provision if you can't target people who appear not to be from this country?

    That is stupid even by Dalmia's admittedly high standard of stupid.

  • GW||

    I think this is pretty easy. Someone gets pulled over. They don't speak english, and they don't have a valid US driver's license. There's probable cause. There's nothing racial about it.

  • John||

    But that is profiling!! Next up Dalmia objects to profiling people who are carrying things out of a store without a receipt as "shoplifters".

  • GW||

    Pulling someone over for speeding is hardly profiling. What happens after that is pretty simple. Besides, if AZ is going to just start pulling over brown people, they're going to need about 100x more cops. There are LOTS of brown people in Arizona. I don't see how you COULD profile someone.

  • John||

    Her position would be asking the guy who can't speak English for proof of citizenship is profiling. It is 20 layers of stupid. Profiling is when you interrogate someone based on an irrelevant and illegal grounds. It is not a crime to be black and you can't assume someone committed a crime because they are black. It is however illegal to be the country without a visa and you can assume that because someone appears to be foreign that they might be here illegally.

  • Heroic Mulatto||

    It is however illegal to be the country without a visa and you can assume that because someone appears to be foreign that they might be here illegally.

    Yes, but what of the naturalized? One's skin color and accent doesn't automatically change when they get U.S. citizenship. Doesn't "papers please" place an unfair burden on American citizens who were born elsewhere? Furthermore, what of the natural-born citizen who was born and raised in a "Chinatown" or some other ethnic enclave, and still has an accent? Just as a White, non-accented English speaker has a right to go about his daily business without carrying ID, if they wish, shouldn't the natural-born citizen I described above have the same right? (As far as I know, naturalized citizens need to carry their "green card" at all time.)

  • GW||

    If you're being pulled over, you are required to carry a driver's licence if you're driving. If you're here legally, a driver's license is easy to obtain. Thus there would be no probable cause to think you're illegal when you hand over your Arizona DL.

  • Heroic Mulatto||

    If you're being pulled over, you are required to carry a driver's licence if you're driving. If you're here legally, a driver's license is easy to obtain. Thus there would be no probable cause to think you're illegal when you hand over your Arizona DL.

    Fair enough. But what if I'm just walking to the store?

  • GW||

    The law SPECIFICALLY states that you have to be detained for some legitimate law enforcement purpose, and if the officer has probable cause to suspect you're illegal, then he can go down that road.

    Does this have the potential to be abused? Yes, as does everything. but I think AZ legislators did about as much as they could do to prevent this from being a war on brown people.

    And once again, Hispanics are so prevalent in Arizona that I'm not so sure how you'd profile. You can't rely on appearance, since the vast majority that are there are there legally, or are citizens already.

  • ||

    no. again

    replace "probable cause" with "reasonable suspicion" and you will have it correct

    other than that, spot on

  • GW||

    I think we're mincing words here, as either of those terms is somewhat subjective.

  • ||

    it's not mincing words. the terms have important and different meaning and are present in literally hundreds of case law cites, and are clearly distinguishable

    i make stops all the time that are justifiable under RS, but where i do not have PC. these are real issues.

    PC is a substantially higher standard than RS

  • Heroic Mulatto||

    Does this have the potential to be abused?

    Well, that's the problem with laws. They were made to be broken. :)

  • o3||

    it will become profiling when brown people are the only ones asked for papers. this will be thrown-out eventually

  • GW||

    No, because with all the publicity this has, any profiling is going to result in the mother of all lawsuits. And as I recall, there's specific language included in the bill to prevent profiling.

  • Pip||

    Really? Because were that true, there would be a shit-ton of lawsuits because of NY's "Stop and Frisk Black and Brown People" law.

  • GW||

    Nah, those situations are night and day, at least from the standpoint of a lawsuit. You ever watch cops? Usually those morons come in contact with the police and voluntarily hand over enough information to have probable cause. They're stupid. Plus, any of these AZ traffic stops are likely to be caught on the dash camera of a cruiser, where stop and frisk isn't. And stop and frisk doesn't have NEARLY the media attention SB 1070 has had.

  • ||

  • John||

    It is not profiling when you are acting on a legitimate grounds retard. If the suspect in a murder is a tall black guy, it is not profiling to talk to all of the tall black guys in the area.

  • ||

    I don't think that's quite analogous. Since "illegal immigration" isn't a singular crime that can be solved, it isn't like all of them are going to be talked to once and let on their way.

    It's more akin to the idea that if a tall black person was the suspect in an unsolvable murder, then all tall black people should be OK with being stopped and questioned repeatedly until they die or leave the area.

  • John||

    I think there is a difference between stopping and asking. If you pull someone over, you can ask them for an ID, why can't you ask them for a green card? And again, just carry the damn thing with you. When I lived in foreign countries, I always had my passport and military ID with me. It seemed stupid not to have such.

  • ||

    That's assuming you believe it's acceptable for cops and other agents of government to demand identification.

  • John||

    Why shouldn't they? How does showing your ID infringe upon your freedom? The reason why we associate demanding of ID with bad things in places like Soviet Russia and Nazi Germany is not because people had to carry ID. The problem was people were not allowed to travel freely. They were not asking for ID. They were asking for travel papers and proof that the person had government permission to travel.

    So equating the Arizona law to "papers please" is nothing but ahistoric bullshit.

  • ||

    it also requires a threshold of evidence to demand ID (see terry v. ohio, etc.) which already exists in many states (in any state with a sotp and ID law, given RS, id must be presented, if the person has it on them. my state has no stop and ID law. i can use reasonable means to determine a person's identity given a terry stop, but i can't arrest somebody for refusing to show me their id).

    many nations, even in europe, have had actual PAPERS law where people are required to both carry and present id UPON DEMAND with no RS or other threshold requirement

  • Heroic Mulatto||

    You still haven't addressed my point upthread.

    Furthermore, what of the natural-born citizen who was born and raised in a "Chinatown" or some other ethnic enclave, and still has an accent? Just as a White, non-accented English speaker has a right to go about his daily business without carrying ID, if they wish, shouldn't the natural-born citizen I described above have the same right?
  • ||

    under AZ law, they do

    again, AZ law required

    1) RS or a traffic stop be valid

    and THEN

    2) RS that the person was illegally present in the US.

  • Heroic Mulatto||

    I understand that. I'm not arguing that people should be able to drive without licences. I'm thinking more, I'm walking to the store. A police officer stops me for whatever reason. The officer asks, "Do you have ID?" I reply "No, I don't have ID on me officer, but my name is John Doe and I live at 123 XYZ Street." If I speak with the wrong accent and the have the wrong complexion, then that gives RS; whereas if I had an American accent and/or the proper complexion, it would not, yes?

  • ||

    the officer would have to have RS to stop you, and already under any state law an officer can ask "do you have any iD"

    but yes, if you cannot produce id, and you have an accent, that may lean towards RS

  • ||

    btw, just to clarify , as a matter of policy, i am against AZ's anti-illegal immigration law

  • Heroic Mulatto||

    but yes, if you cannot produce id, and you have an accent, that may lean towards RS

    See, and that would be an unfair burden to the natural-born citizen who happens to have an accent, like in my Chinatown example. (I have a specific guy in mind, actually. I know a guy who was born and raised in NYC's Chinatown. He went to American public schools for all of his education. He's in his mid-twenties but still talks like he's Jackie Chan in Rush Hour.)

  • ||

    i readily admit i have never enforced immigration law, and have little experience in reading about it, so i am not sure what does and doesn't establish RS vis a vis being here illegally.

  • GW||

    There will always be fringe cases. But you know what? A lot of these illegals can be spotted from a mile away. Here, I can spot them just by looking at how they drive, without even knowing the ethnicity of the persons inside. Call it stereotyping if you want, but if I see a minivan loaded down with people going 5 mph under the speed limit I've got "reasonable suspicion" to think they're illegals. Why? Because a lot of illegals around here do exactly that. And that's without having any knowledge whatsoever of what ethnicity the people inside the van are.

    It's no different than matching the description of a bank robbery suspect. I could be stopped several times over the course of a few days based on that alone.

  • jasno||

    Wow... GW has the power to differentiate a poor latino family born in the US from a poor latino family illegally present in the US. You should put that power to good use. I dub you Captain Racial Profiling. Might I suggest some white tights and a matching white hood for your outfit?

    Question for Dunphy - does 'furtive movements' satisfy RS anywhere other than NYC?

  • ||

    furtive movements are PART of the totality of the circ's.

    i also realize this shit is just punchline academic wanking for you guys, but for cops ... it's real.

    my best friend was shot in the head while interviewing a BGD gangster. might he be alive if he used better officer safety? maybe, maybe not.

    3 guys in my unit were shot on one drug search warrant. guy wouldn' take his hands out of his pockets and kept approaching and then blammo.

    shit like this actually happens

    generally speaking, imo, when people make furtive movements --- it's because they are trying to hide something

    sometimes drugs, sometimes, weapons, etc.

    but if you reach down and stuff something under the seat as i approach or make a traffic stop (traffic or terry), generally speaking, i am going to get you out of the car, call for backup and then look under the seat.

    if a court later finds i didn't have RS for the frisk of the seat area, great. i will tell the truth in court, and if it gets thrown out - great - whether a stolen gun or whatever.

  • ||

    but first and foremost, i will use reasonable means to protect myself.

    most members of the public, heck most defense attorneys understand this. i once had a defense attorney say "hey, it's my job to challenge the stuff you find, but i would rather you be safe than start dancing around" and basically said - if my spidey sense was going off, do the pat frisk.

    this is reality. for you, it's not. for us, it is. it's not academic. and again, if and when a court suppresses something... so what? i will act based upon my perception at the time, based upon my training and experience, and i will do my best to go home alive.

    a smart enuf guy will still get the drop on me if he tries hard enough. action is faster than reaction. i had that happen to me, and sadly he blew himself away not me, but i was a sitting duck if he wanted to.

    again, these aren't academic arguments. this is real life, flesh and blood and bone stuff. i've been assaulted, shot at, been in shootouts, had friends who have been stabbed, shot, shot at, etc.

    it's not academic and it's not a joke

  • jasno||

    Thanks for the explanation. I understand that it means something totally different to you. To me, especially in the context of NYC's stop and frisk program, 'furtive movements' is a way to legitimize a 'hunch' - which as you know is clearly not sufficient for RS.

  • ||

    i am a critic of NYC's program, because i think there is strong evidence that as a matter of SYSTEMIC PRACTICE, it routinely shortcuts constitutional safeguards.

    i'm trying to remember the last time a furtive movement (specifically towards the underside of a vehicle seat) did NOT result in recovery of some sort of contraband. often, it's something as innocuous as an open container, but if you want to make cops nervous, start fiddling around and stuffing stuff under your seat as they approach :)

    heck, i'd cut a guy a warning for having an open container in his lap (assuming he wasn't DUI), as a preference to getting all 'furtive'

    also, to clarify, furtive movements i am referring to are those that WHEN RS is already present for a stop, ADD to the "frisk factors" such that a frisk may also be justified. they don't justify a stop, they merely GIVEN a justified stop, create frisk factors that will often justify a frisk

    not all terries, justify a pat down. frisk factors are those factors present GIVEN a terry that also justify a pat down.

    it is most certainly true that a furtive movement is sometimes a "legalized fishing expedition" justification, but it's also true that people make such movements to hide/readjust guns and other weapons and again, as somebody who HAS had people pull a gun on him before, has been shot at etc., these are real world concerns

  • ||

    fwiw, i work in a shall issue state, and i have had ZERO problem with lawful carriers and such movements. the average person lawfully carrying will let me know he is (good practice, but not legally required here), and as a rule, they are very law abiding and not a concern.

  • ||

    it's not probable cause, nor under AZ's law does it need to be PC

  • tarran||

    I can just see some citizen of Virginia writing in the 1850's:

    No shit. Suspected slaves are generally Negroes. How the hell are you supposed to enforce any fugitive slave law if you can't demand Negroes prove that they are not slaves?
  • John||

    Enforcing the border is just like enforcing slavery. Had the fugitive slave law been a morally defensible law, that is exactly how it would have been enforced.

    Yes, immigration laws necessarily discriminate against foreigners.

    Thanks for playing and adding to Reason's usual festival of retardation that happens on every single immigration thread.

  • ||

    The problem is that I don't think your idea of "enforcing the border" is the same as mine, say. Explain what you mean by "border enforcement".

  • John||

    The problem is that I believe in such a thing as a border and national sovereignty and Libertarians don't. And that is where I part ways with them.

  • jasno||

    Bullshit. I'm all for borders. Enforce them. But you can take your constitution-free zone and associated racial profiling and illegally detain them in your anus.

  • ||

    fwiw. the concept of a border zone, like it or not (vs. merely searches AT the border) iirc is well over 100 yrs old

    iow, whatever you can say about it, it is not some WOD, anti-terra etc. newfangled 4th amendment dodge.

    it's quite old and well established

  • jasno||

    Yep, I get that. But like many old concepts it needs to be rethought in the modern world. 100 years ago you had sparse populations and open borders.

    How's WA nowadays? Do you have random checkpoints with drug dogs busting people for half-smoked joints like we do in So.Cal?

  • ||

    nope. here in WA *we* have a right to privacy. it's an actual right to privacy vs. what the 4th amendment protects, and thus we don't have (for example) DUI checkpoints and other stuff

    it's one of the reasons i chose to live in WA - no income tax was a big one, too

    i love our right to privacy. i wish we had one in the federal constitution

  • Cytotoxic||

    I hate the anti-immigrant crowd here, and even I think this comparison is as retarded as John says it is.

  • Brandybuck||

    We're talking about Arizona. Which for several thousand years has had a predominantly brown-skinned populace.

  • o3||

    the anti-immigrant gop'ers must be brown red w anger.

  • Pip||

    Oh just shut the fuck up.

  • StolenMonkey86||

    The decision was 5-3, not 5-4. Kagan did not participate, and Roberts joined in the majority. Also Alito joined the majority on the part for whether it was a crime to not be carrying papers, per Politico (I didn't scroll all the way through to read his opinion).

  • Kantofang||

    that looks like it makes a whole lot of sene dude. Wow.

    www.Dot-Anon.tk

  • Pip||

    TIGGY!!!! TIGGY!!!!

    TIGGY?

  • ||

    "Full disclosure: I am a naturalized citizen in the latter camp, although I, mercifully, don't live in Arizona and unless this law is scrapped in toto would never consider moving there.)"

    -----------------------------

    Yes, because this one law clearly makes Arizona an awful place, far worse than that shining paradise we call Michigan!

  • ||

    And before Orrin casts forth his fury, I'm open-borders-compliant in my convictions.

  • Heroic Mulatto||

  • ||

    Why do you love communism, HM?

  • Heroic Mulatto||

  • Pip||

    So you still have half of your foreskin?

  • Heroic Mulatto||

    So you still have half of your foreskin?

    I call it a twoskin, now.

  • JoeZilch||

    This issue is nothing more than a political football.

    Either you're trying to get the "Hispanic" vote or you're trying to get the "anti-Goobacks" vote.

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