JURIST Columnist Kevin Johnson, writing a special edition of the column authored by the faculty of the University of California, Davis School of Law, says that despite public concerns over racial profiling, the Supreme Court is focusing on issues of federalism in the case of Arizona v. United States, and will likely uphold at least two sections of SB 1070…

Last Wednesday, the US Supreme Court heard oral arguments in Arizona v. United States, the case challenging the constitutionality of the controversial Arizona immigration enforcement law known as SB 1070 [PDF]. This article will hazard a prediction about the outcome of the case, which might well be one of the Court’s most significant immigration decisions in many years. It also will demonstrate how divergent the public debate is from the legal discourse about state immigration enforcement laws.

A Prediction

The US government filed suit to challenge Arizona’s SB 1070, as it did with respect to Alabama and South Carolina copycats, on the grounds that it violates the Supremacy Clause of the US Constitution, which makes federal law the “supreme law of the land.” The claim is that SB 1070 impermissibly intrudes on the federal power to regulate immigration and therefore is unconstitutional.

The US Court of Appeals for the Ninth Circuit agreed with the US government in striking down four provisions of SB 1070:

1. Section 2(B), which requires state and local law enforcement to verify the immigration status of persons subject to a lawful stop, detention or arrest when the officers have a “reasonable suspicion … that the person is an alien and is unlawfully present in the United States”;
2. Section 3, which would make it a crime under Arizona law, in addition to federal law, to fail to complete or carry an “alien registration document”;
3. Section 5(C), which would make it a crime for a person to apply for, solicit or perform work without proper immigration authorization; and
4. Section 6, which would allow a police officer to arrest a person without a warrant if the officer has “probable cause to believe … [t]he person … has committed any public offense that makes the person removable from the United States.”

The Ninth Circuit was unanimous in invalidating Section 3, which is directly contrary to Supreme Court precedent, see Hines v. Davidowitz. It also unanimously struck down Section 5(C), which criminalizes the conduct of undocumented employees and goes well beyond the civil sanctions that US immigration law allows to be imposed on undocumented workers. However, Judge Carlos Bea dissented from the majority’s holding invalidating Sections 2(B) and 6, the two provisions involving state and local police enforcement of the US immigration laws.

Before the oral argument in Arizona v. United States, I suggested that a majority of the Supreme Court just might agree with Judge Bea and uphold two of the four provisions before it. The oral arguments have convinced me that a majority of the Court will in fact agree with Judge Bea. During the arguments, almost all of the eight justices participating in the case expressed agreement in whole or in part with his approach (Justice Elena Kagan recused herself from the case).

Surprisingly little questioning in the arguments centered on the Court’s recent preemption decisions involving the US immigration laws. In De Canas v. Bica, the Court stated that the “[p]ower to regulate immigration is unquestionably exclusively a federal power.” Although that language sounds clear, the Court proceeded to uphold a California law allowing for the imposition of sanctions on the employers of undocumented immigrants. Last year, in Chamber of Commerce v. Whiting, the Court reiterated federal supremacy over immigration (“Power to regulate immigration is unquestionably … a federal power”) but refused to disturb an Arizona law that allowed the state to strip the licenses of businesses that employ undocumented immigrants.

Rather than ask how its precedents applied to the case at hand, the justices’ questions focused primarily on the operation of Section 2(B) of SB 1070, particularly how quickly Arizona police could check with US immigration authorities about the immigration status of a person. Appearing persuaded that such a check by local police would not be too time-consuming, the justices expressed skepticism about the US government’s claim that Sections 2(B) and 6 were preempted by federal law. There was little discussion of Sections 3 and 5(C), but what limited discussion there was hinted that the justices believed that these sections were, as a unanimous Ninth Circuit concluded, unconstitutional.

Public Debate v. Legal Debate

While the Supreme Court argument centered on the power of the states to assist in the enforcement of the US immigration laws, many critics of the state immigration laws are less worried about state intrusion on federal power over immigration and much more concerned that the laws would encourage discrimination against Latinos, including lawful immigrants and US citizens. Specifically, the Arizona law (like many of the others) requires state and local law enforcement officers to verify the immigration status of person who they have a “reasonable suspicion” are undocumented.

Some observers claimed that SB 1070 would increase racial profiling of Latinos. The key question was how police would decide whether there was, as Section 2(B) provides, a “reasonable suspicion … that the person is an alien and is unlawfully present in the United States.” The fear is that “foreign-looking” people, especially Latinos, will bear the brunt of the mandatory immigration checks. Concerns with racial profiling contributed to the considerable public attention received by SB 1070 and Arizona v. United States.

As discussed above, the oral arguments focused on federal preemption law, not racial profiling. Counsel for the US government emphatically denied that racial profiling was at issue in the case. Counsel for the state of Arizona, as well as the justices, eagerly accepted that denial. The justices therefore did not ask questions about whether Section 2(B) of SB 1070 might result in the racial profiling of Latinos.

Unlike some of the other plaintiffs in related cases challenging the Arizona law, the US government had not made any claims that SB 1070 violates the Equal Protection Clause of the Fourteenth Amendment because it was adopted with some kind of invidious discriminatory intent. Claims of discrimination will likely have to wait another day, with the issues possibly addressed in the other cases challenging SB 1070 or in a new challenge based on the application of Section 2(B) by police.

It should be readily apparent that there is a serious disconnect between the public debate over Arizona’s SB 1070, as well as similar state immigration enforcement laws, and the legal arguments in the Court. This is not entirely surprising. Indeed, I predicted this outcome even before the Court granted certiorari in the case.

Despite the Court’s focus on federal versus state power in the realm of immigration, serious civil rights concerns lurk in the background of the legal arguments in Arizona v. United States. Namely, Latinos and immigrants fear that SB 1070’s mandate that state and local police check the immigration status of persons whom they “reasonably suspect” are undocumented, will result in racial profiling at levels never before seen. Those familiar with the civil rights record of Maricopa County, Arizona, Sheriff Joe Arpaio, who according to news reports may soon be indicted for criminal civil rights violations, know that this fear is real.

Unfortunately, if the Supreme Court decides the case as I predict, the public concerns will go unaddressed as a matter of law — at least for the time being. Still, the discontent with the ruling among some segments of the public will likely be palpable and result in sharp criticism.

Conclusion

The Supreme Court will likely reverse the Ninth Circuit and uphold two of the four provisions of Arizona’s SB 1070 before it. The two that will be upheld will allow the state to require local police to check the immigration status of persons about whom they have a “reasonable suspicion” are undocumented. The Court’s ruling will likely draw the ire of civil rights advocates and make clear the wide gulf between the federal and state power issues addressed by the Court and the civil rights concerns of certain segments of the public.

However the Court decides, Congress has the power to address the issues raised by Arizona v. United States. To justify SB 1070, Arizona political leaders contend that the US government is failing to enforce the immigration laws. It is hard to contend, however, that the Obama administration is not enforcing the law when it has deported more immigrants than any other administration in US history, including nearly 400,000 last year. In any event, the frustration with the current immigration system ultimately is for Congress, not the states, to address through comprehensive — and national — immigration reform, which could make clear the role, if any, of the states in immigration enforcement.

Kevin Johnson is Dean of the University of California Davis School of Law and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies. Johnson has published extensively on immigration law and policy, racial identity and civil rights. He is one of the editors of the ImmigrationProf blog.

Suggested citation: Kevin Johnson, Public Perception and the Law in Arizona v. United States, JURIST – Forum, Apr. 29, 2012, http://jurist.org/forum/2012/04/kevin-johnson-arizona.php.