So what does the United States Supreme Court’s Opinion in Arizona v. United States really mean? Will I never travel back to Arizona again, forever to miss the beautiful views of Sedona and its enchanting rock formations? Probably not – but that has more to do with the fact I have an enhanced driver’s license which proves (let’s hope) that I am a U.S. Citizen. Does it mean people will be reluctant to travel or work in Arizona? Who knows, but I wouldn’t put it past some people to just say “I’m sure whatever I want to find in Arizona exists just as much in a less politically backward state, like say, California.”
SCOTUS (Supreme Court of the United States, for those not in the know) looked at four provisions in Arizona Senate Bill 1070. Three of them got struck down, like the hands of naughty school children by well-trained pedagogues. One survived. That one, of course, was the provision that was getting the biggest hoopla.
OK, so first, let’s look at what did not survive federal preemption challenges.
1. Warrantless Arrest of Individuals Believed to Have Committed A Deportable Crime. Yikes, that would have been scary. Thankfully there was a 5-3 decision that this was preempted by federal law and therefore an unconstitutional state law. This wasn’t even addressed to people who were here illegally, it was free range for Arizona police to arrest someone who was otherwise here legally, as long as there was probable cause they had committed a deportable crime. SCOTUS said, à la Lee Corso, “not so fast.” The power to make a law like this rests solely with the federal government and Arizona cannot decide when to deport someone.
2. State Crime For Undocumented Workers Trying To Get Jobs. Are there undocumented workers in your state? To find out, go to the local grocery store and ask yourself how many of the fruits and vegetables in the store are grown in your state and require harvesting. Or, ask yourself if there are any ethnic communities with restaurants. Or, ask yourself if there are any textile or manufacturing plants. Or, ask yourself if there are any bars that hire bouncers, shot girls, bartenders, or janitors. Making it a crime for those undocumented people to find work would a) make the price of all those services increase, b) increase your tax bill for prisons and law enforcement activities, and c) would be one of the most anti-business laws ever pushed by supposedly “job promoting” Republicans.
3. State Crime For Just Being In the Country Illegaly! The whole point of this provision was to create a generic law that would then be the basis for immediate deportation. You see, under federal law, you can certainly face deportation if you are arrested while in the United States for having violated a law. So, if you make the very act of breathing illegally in the state of Arizona a crime, then voilà, you get Arizonopoly bonus of deportation along with your crime for illegal breathing! SCOTUS said federal law left no room for states to create this new law.
Now, those three provisions were struck down 5-3. Justice Kagan had to recuse herself because she was involved in this litigation at the lower levels before becoming a Justice. Justices Thomas, Alito, and Scalia all dissented to those provisions, proving they are the arch-Conservatives of the Roberts Court. Even though Roberts was on the majority side, thus giving himself the right to author the opinion, he handed it off to Kennedy.
Hello people, this is the Kennedy Court, and we all just live with it.
Which gets us to the juicy, juicy part of the Opinion. That has to do with Section 2(b) of the Arizona law, the only part that currently has any life. It is the now infamous Police Check provision of the law. Now, let’s remember first of all that the challenge to this provision was still only under federal preemption. We know that future challenges under 14th Amendment Equal Protection or Civil Rights basis are on their way. But at least as far as preemption goes, Arizona is good to go.
So what does that mean for us? Apparently POTUS (Transformers fans should know that stands for President of the United States) is concerned about what’s left, and you know what, he should be!
Again I ponder this question. Section 2(B) provides that officers who conduct a stop, detention, or arrest must in some circumstances make efforts to verify the person’s immigration status with the Federal Government. So, the question is, what danger does this pose? The duties of the law enforcement officer only trigger if I’ve been stopped, detained or otherwise arrested in a lawful manner. Stopped is probably the most looming way I can see an overzealous officer using this power unfairly to target even legal citizens. Do I speak with a heavy accent? No. Does my dad, who is also a US Citizen? Do the Cubs choke in September?
I may not get arrested or detained in Arizona barring strange circumstances, and the same probably holds true for most Americans of Latino heritage that visit or live in Arizona. But as anyone who has been in a rush to work in the morning knows, we’re never far away from a traffic stop. So now I’ve been stopped and the officer’s duties under Section 2(b) are triggered.
Well, if I have a valid driver’s license I should be let go. But the statute says “valid Arizona driver’s license or similar identification”… what if I let my license expire?!?! ILLEGAL! Off to the ICE holding camp for you. OK, maybe not. Second factor, skin color. Look at my picture, I look less Latino than most non-Latinos envision the average Latino. Then again, go to Argentina and Spain and you’d wonder where your idea of what a Latino looks like comes from? *cough* media *cough* So I’m probably OK. But then there’s my mom, who looks like a classic Latina lady with dark hair, dark skin, and brown eyes. She’s riding in my car, as a passenger. I’ve been stopped for “speeding” or “rolling stop” or some other reason and she has no ID on her because her lovely son was driving her to the ice cream shop (she’s diabetic, so I’d be protesting vigorously the whole way). The officer asks if she’s a US citizen and she says “no” and also sadly she has no valid ID. Hmmmm…. the officer says, “I now have reasonable suspicion you are here illegally because well, you sure ain’t a citizen you said so yourself and you ain’t got no ID and you is darker than a burnt piece of rubber.” Game on. I now have to, what, file suit for immediate relief while my mom is being detained and claim that she’s being withheld in an unconstitutional basis because she’s dark skinned? The government will get to say it gets to use race or ethnicity as a factor so long as it doesn’t run afoul with US and Arizona Constitutional protections. States can’t discriminate against legal resident aliens (my mom) unless they have a compelling interest and their method of discrimination is narrowly tailored (done in the least disruptive manner)(edit – I caught myself yesterday when I initially ran this post and forgot states have strict scrutiny on equal protection for class basis with alienage).
Meanwhile, my mom is still being detained because of a traffic stop and her desire to have ice cream and I say “I told you so.”
It should have all been struck down. All of it.