By Gloria J.Browne-Marshall, J.D./M.A.
Gloria J.Browne-Marshall
A recent New York Times/ CBS poll indicated Americans are deeply concerned about immigration policies. In a 5-4 decision, the U.S. Supreme Court struck down certain provisions of SB 1070, Arizona’s immigrant law. The Obama Administration claimed victory. However, the celebratory mood may be premature. The Supreme Court let the most controversial part of the law stand.
Justice Anthony Kennedy wrote the decision in Arizona v. United States. Justice Kennedy come to be known as the “swing vote.” He often breaks the ties between the liberal Justices Ruth Bader Ginsberg, Stephen Breyer, Sonia Sotomayer, and Elena Kagen, and the conservatives Justices Antonin Scalia, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts. The decision began with the Court striking down provisions found unconstitutional.
Arizona cannot enact laws in areas already covered by Federal laws. States are preempted from intruding on federal territory. Article 1 of the U.S. Constitution gives Congress power over Immigration and Naturalization. Article Six of the Constitution makes Federal law the supreme law of the land. Yet, Arizona believed its immigration situation was dire enough for the state to take immigration matters in its own hands.
Arizona’s law, SB 1070, allowed law enforcement to arrest illegal immigrants who sought employment. It is against the law for illegal immigrants to gain lawful employment. Under SB 1070, employers would be subject to fines and criminal prosecution for knowingly employing illegal immigrants. Local police were also given authority to detain suspected illegal immigrants until they produced documentation of legal status. The Court struck down the employment provisions of SB 1070. The Federal government had enacted laws covering these issues. The field was not open for State action.
The Court let stand the detainment provision. It was this authority to detain suspected illegal immigrants that brought tens of thousands of protesters into the streets with accusations of profiling. Section 2B of SB 1070 remains in a reduced, but still quite virulent form. An officer may not detain a person based on suspected illegal status alone.
If an officer has reasonable suspicion of commission of a criminal act, then a person may be detained. While detained they may be questioned about suspected illegal status. Local police may request proof of citizenship when the person is already detained on another matter. The crime for which the person is initially detained could be driving without a seat belt, making an illegal turn, or talking on a cell phone without a headset.
It would be profiling for officers to consider race, color, or national origin when deciding which seat belt violations to address. In New York City, the police deny racial profiling led to the detainment of over 683,000 people in 2011, the majority of whom were people of color. Under section 2B, jay walking could lead to a request for proof of legal status.
Hispanics in Alabama fled the State when a similar law was enacted there. With a mixture of legal and illegal family members, they did not want to take a chance on detainment and possible deportation. Proponents of stricter immigration laws may applaud the exodus. However, farmers in Alabama are losing money because citizens do not elect to do the backbreaking labor required to pick fruits and vegetables in the hot sun. Other States’ legislatures are considering stricter immigration laws.
The proper application of the U.S. Supreme Court’s ruling in the Arizona case is at the center of their immigration debate. The issue of pretext of reasonable suspicion could be the next legal issue in need of resolution. Perhaps presuming this development, the Court’s opinion made note of the Fourth Amendment’s protection against unreasonable searches and seizures.
Dissenting, Justice Scalia expressed how the majority’s decision was counter to the Framers’ belief in State sovereignty. Quoting the Articles of Confederation, he chastised the majority for intruding on a State’s right to protect its own borders. However, the Framers of the U.S. Constitution created a central government, in 1787, to protect all of the borders of the United States.
Gloria J. Browne-Marshall, an Associate Professor of Constitutional Law at John Jay College in New York City, is author of “Race, Law, and American Society: 1607 to Present,” and a journalist covering the U.S. Supreme Court. Her forthcoming book is “Black Women and the Law: Salem Witch Trials to Civil Rights Activists