I could be accused of being too optimistic about the Supreme Court immigration ruling. I recognize that the portion of the law the Court left intact, the “show me your papers” measure, was most certainly the most important. But the Court didn’t “uphold” that part of the law in any way. They basically let it work its way through the lower courts, based on actual enforcement actions, while saying they did not have the authority to pre-empt it at this time. What’s more, the Court specifically warned Arizona that detentions based on immigration status alone would bring Constitutional scrutiny:
Detaining individuals solely to verify their immigration status would raise constitutional concerns. And it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision. The program put in place by Congress does not allow state or local officers to adopt this enforcement mechanism.
But §2(B) could be read to avoid these concerns. To take one example, a person might be stopped for jaywalking in Tucson and be unable to produce identification. The first sentence of §2(B) instructs officers to make a “reasonable” attempt to verify his immigration status with ICE if there is reasonable suspicion that his presence in the United States is unlawful. The state courts may conclude that, unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry.
We’ll have to wait and see how the lower courts construe that. But the potential exists to limit the law. And future challenges are completely open to litigants, particularly after we get some data on how the program is being implemented on the ground. If Arizona can be shown to be overstepping federal jurisdiction, like through detaining undocumented suspects solely on the basis of their immigration status, the Court has basically already tipped their hand that they would find that unconstitutional.
That’s not the optimal outcome for those who will be caught up in this web, hopefully for a brief period of time before more challenges and injunctions. But when you have absolute wild men like Antonin Scalia as a thought leader on the Court, getting an outcome like this is a pretty good alternative.
However, I do agree with Marcy Wheeler that the existence of Secure Communities definitely played a role in the ruling, and it could have been that the whole thing would have been pre-empted without it. This is from Justice Kennedy’s opinion:
Consultation between federal and state officials is an important feature of the immigration system. Congress has made clear that no formal agreement or special training needs to be in place for state officers to “communicate with the [Federal Government] regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States.” 8 U. S. C. §1357(g)(10)(A). And Congress has obligated ICE to respond to any request made by state officials for verification of a person’s citizenship or immigration status. See §1373(c); see also §1226(d)(1)(A) (requiring a system for determining whether individuals arrested for aggravated felonies are aliens).
That explicitly refers to Secure Communities. That program, now made mandatory by the Department of Homeland Security, does not kick in until a suspect is arrested, rather than in a routine stop or a citation for a misdemeanor. But Marcy is right that Secure Communities “makes the process of checking status more routine by mandate.” Backers of SB 1070 could argue that they are following federal guidelines in their enforcement of their state law.
Marcy’s also right that Joe Arpaio is a prime candidate to abuse this law, and that will serve to undermine it. Ultimately, I think all of SB 1070 ends up getting unwound. But maybe if the Administration wasn’t so determined to prove toughness on immigration in a failed attempt to show good faith to conservatives and seek a compromise, that day would already be here.