In the legal battle over Arizona's "papers, please" law, SB 1070, the only part left standing after today's Supreme Court decision is the "papers, please" part.
The Court found that Arizona does not have the authority to make unlawful presence in the country a separate state crime; to make it a crime for undocumented immigrants to work or seek work; or to arrest someone without a warrant if there is "probable cause" they've committed a deportable offense. (For more on the legal implications of the decision, see Garrett Epps's analysis.)
But the Court upheld SB 1070's most contentious provision, Section 2(b), which allows police officers to try to determine the immigration status of someone they have "reasonable suspicion" is in the country illegally. The justices, however, said they were open to reviewing civil-rights concerns with the provision once it had been implemented. Because the law was written in a way that forbids racial profiling—at least in theory—the Court gave it the benefit of the doubt. "[W]ithout the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume [Section 2(B)] will be construed in a way that creates a conflict with federal law," the opinion reads.
Immigrant-rights advocates quickly assailed the Court for upholding "the heart of the problem with SB 1070," and warned that it would lead to widespread racial profiling. "The Supreme Court has kicked the can down the road on this provision," said Anthony Romero, executive director of the American Civil Liberties Union (ACLU), on a press call today. The decision, he said, "will cause irreparable harm to people of color all over the country."
The Court's decision knocks some of the teeth out of SB 1070: While officers can try to determine a person's immigration status, they cannot arrest or detain him or her if there is no concurrent crime. But advocates from major immigrant-rights groups say that, inevitably, the law will be used to harass members of minority groups. "We don't believe there's any way for this section to be implemented in any other fashion," says Melissa Keaney, an attorney at the National Immigration Law Center (NILC). "Except for witnessing someone walk across the border, how else would an officer develop a suspicion of legal status on any other factor but race?"
On the press call, leaders from ACLU and NILC as well as other civil-rights groups—the National Council of La Raza, the Center for Community Change, and the Leadership Conference on Civil and Human Rights—vowed to continue fighting Section 2(b) in court. The ACLU has dedicated an $8 million "war chest" of funds to litigate SB 1070 and copycat laws in other states. (Another case sponsored by a number of immigrant-rights groups, Friendly House v. Whiting, addresses the racial-profiling question directly.)
Advocates pledged to pressure the Department of Justice to monitor and take action against any civil-rights abuses that come to light, and also to use the ballot box to vote supporters of SB 1070 and similar measures out of office. "The Supreme Court has made its voice heard. Now it's time for people of good will—and particularly people of color—to make their voices heard," said Deepak Bhargava, executive director of the Center for Community Change. "This is a matter in which the vote is a matter of self-defense."
But playing whack-a-mole as anti-immigrant legislation pops up across the country, advocates say, is not the long-term solution. "This is a clarion call for comprehensive immigration reform," Bhargava said.
Of course, one hears similar calls for federal immigration reform on the right. But when those on the right and the left talk about "immigration reform," they mean starkly different things. When anti-immigrant groups talk about the feds getting involved, they're talking about stricter enforcement—putting drones on the border, extending the fence, and making life so miserable for the undocumented that they choose to leave. But the real problem with our immigration system—and the solution—is technocratic. The quotas are insufficient to meet the demand (if you're from Mexico and decide to "get in line," your number won't be called for more than a hundred years), immigration law is indifferent to family relationships (your spouse or children have to wait abroad while they apply, sometimes for years, while the case winds its way through the bureaucracy), and the immigration courts are backlogged for years. The bureaucratic mess that makes up our immigration system has led a vast majority of people to skip it altogether, which is why we have 12 million undocumented immigrants living in the country today.
In fact, addressing the boring bureaucratic problems would mean we'd have to invest fewer resources in enforcement. With a properly funded, fair immigration process, a large majority of immigrants seeking to enter the country would do so legally, which means we wouldn't need as many officers patroling the southern border, nabbing people who've calculated that it's easier to risk their lives crossing the desert than taking a shot with INS. Laws like Arizona's SB 1070 do nothing to solve our core immigration problem, which is that it's exceedingly difficult to get papers to hand over in the first place.