The nation's high court on Monday cleared the way for Arizona to force state and local police to check the immigration status of those they have stopped.
Without dissent, the U.S. Supreme Court said there is nothing inherently wrong with the requirement for police to make such an effort when there is reason to believe a person is in this country illegally. Justice Anthony Kennedy, writing for the court, said there was no reason to believe, at least at this point, that provision of SB 1070 would be enforced in a way to violate the rights of individuals.
But the justices fired a warning shot across the bow of police agencies in Arizona, warning that if there is evidence that people are being unfairly stopped or detained for long periods of time they would take another look at the law -- and potentially preclude the state from enforcing it.
"We know the critics will be watching and waiting, hoping for another opportunity to continue their legal assault against our state,'' Gov. Jan Brewer, who signed the legislation two years ago, said at a press conference following Monday's ruling.
But the governor said she is not concerned, saying she has "faith in law enforcement.'' And Brewer pointed out that that after SB 1070 was approved in 2010 she directed the Arizona Peace Officer Standards and Training Board to come up with materials "to ensure our officers are prepared to enforce this law efficiently, effectively and in a matter consistent with the Constitution.'' Those materials were updated earlier this month in anticipation of today's ruling.
"Civil rights will be protected,'' she said. "Racial profiling will not be tolerated.''
A bigger question, though, will be whether the provision will mean anything when it is finally implemented.
Senior officials at the Department of Homeland Security said Monday that the ruling will not force Immigration and Customs Enforcement to change its policy of focusing enforcement on criminals and repeat offenders. And it does not undermine the president's decision to refuse to pursue those who came here as children and have been here at least five years.
In fact, ICE on Monday summarily revoked agreements it has had with several law enforcement agencies around the state, including the Department of Public Safety, which had given their properly trained officers authority to enforce immigration laws.
And the Supreme Court, in Monday's ruling, took away any chance that Arizona could do anything at all, on its own, with those who officers determine are in the country illegally: A majority of the justices ruled Arizona cannot enforce three other sections of the law that created new state crimes designed to give police the power to unilaterally arrest illegal immigrants:
- Seeking work in Arizona without being in this country legally;
- Failing to carry federally issued registration cards;
- Allowing warrantless arrests if there is "probable cause'' a person committed an offense that makes them removable from the country under federal law.
The justices said all three provisions illegally conflict with federal law.
Brewer sidestepped questions about whether the ICE action rescinding those agreements and the balance of the Supreme Court ruling makes meaningless the ability to question people about their immigration status, as officers would be required to simply release those they have stopped even if they are not in this country legally.
"I believe we have accomplished a lot,'' she responded. "We will be instructing law enforcement to begin practicing what the United States Supreme Court has upheld.''
But former Senate President Russell Pearce, who crafted the original law, said he recognizes the limits all these actions place on what police can do.
"This is a challenge,'' he said. "They will take some, they may not take all,'' Pearce said of ICE officials notified of people not in this country legally.
And Rep. John Kavanagh, R-Fountain Hills, recognized the importance of those three sections being voided.
"It's unfortunate that we lose those provisions,'' he said, saying they would have allowed the state to pursue illegal immigrants even in the face of lack of federal interest. Kavanagh said that is why the country needs a president who will enforce the law.
How quickly police can begin enforcing what foes of the law called the "papers please'' provision is unclear.
In issuing the ruling, the high court sent the case back to U.S. District Court Judge Susan Bolton who issued the original injunction just days before SB 1070 was set to take effect. That process could take weeks.
Here are the four provisions of SB 1070 decided by the U.S. Supreme Court as well as comments from the court's majority ruling.
Section 2(B) requires police to try to determine the immigration status of someone they have already stopped if there is "reasonable suspicion'' that person is unlawfully in the country. It also requires determination of immigration status of anyone placed under arrest. UPHELD AS WRITTEN.
"However the law is interpreted, if Section 2(B) only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive pre-emption -- at least absent some showing that it has other consequences that are adverse to federal law and its objectives. There is no need in this case to address whether reasonable suspicion of illegal entry or another immigration crime would be a legitimate basis for prolonging a detention, or whether this too would be preempted by federal law.''
Section 3 makes it a state crime for someone not in this country legally to fail to carry federally issued registration cards. VOIDED AS PREEMPTED.
"Federal law makes a single sovereign responsible for maintaining a comprehensive and unified system to keep track of aliens within the Nation?s borders. If Section 3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations. . . . Even if a State may make violation of federal law a crime in some instances, it cannot do so in a field (like the field of alien registration) that has been occupied by federal law.''
Section 5(C) makes it a crime for an undocumented worker to apply for work in a public place or perform work as an employee or independent contractor in Arizona. VOIDED AS PREEMPTED.
"Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment. A commission established by Congress to study immigration policy and to make recommendations concluded these penalties would be 'unnecessary and unworkable.' . . . . Congress decided it would be inappropriate to impose criminal penalties on aliens who seek or engage in unauthorized employment. It follows that a state law to the contrary is an obstacle to the regulatory system Congress chose.''
Section 6 lets police make an arrest without a warrant if there is "probable cause'' they committed an offense that makes them removable from the country. VOIDED AS PREEMPTED.
"This state authority could be exercised without any input from the Federal Government about whether an arrest is warranted in a particular case. This would allow the State to achieve its own immigration policy. The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed. This is not the system Congress created.''