Face It: SB 1070 Is about Race

"Before you get into what the case is about," Chief Justice John Roberts told Solicitor General Donald Verilli at the beginning of the government's argument in United States v. Arizona, "I'd like to clear up at the outset what it's not about. No part of your argument has to do with racial or ethnic profiling, does it? I saw none of that in your brief."

A non-lawyer might be puzzled. The case, argued Wednesday, is testing the constitutionality of part of Arizona's S.B. 1070, a statute that seeks to drive undocumented immigrants out of the state by rigid law enforcement.

S.B. 1070, passed in a state that borders Mexico, will bring about many more stops and detentions of brown-skinned people, citizens or not. But the government chose not to argue that issue in its brief, and Verilli agreed that the profiling issue was off the table.

The government's argument, taken as a whole, is this: The Constitution gives the federal government exclusive authority over immigration and naturalization. That was done because immigration concerns foreign affairs, and the states can't have their own foreign policies. The U.S. can only deport 400,000 aliens a year, and the federal government, entrusted by Congress with discretion, has chosen to focus on violent criminal aliens; by permitting Arizona to arrest, detain, and imprison those who would otherwise not be charged under federal law, S.B. 1070 attempts to force the United States to adopt Arizona's policy of maximum enforcement. In addition, the working of Arizona's statute will lead to widespread discrimination against some citizens, and against nonresidents who have a right to remain in the U.S. It will also create serious foreign policy problems with Mexico.

Arizona's case, in essence, is this: Our state deals with a disproportionate number of illegal border-crossers. The federal government won't or can't control the borders, and we are left to deal with increased problems of crime and of illegal aliens taking jobs away from our citizens. We have created a program that simply uses existing federal requirements and gives our police officers a role in enforcing them.

The challenged portions of S.B. 1070 are:

• Section 2(B), which provides that during any lawful "stop, detention or arrest," state law enforcement officers who have "reasonable suspicion" that the person stopped is an unauthorized alien "shall" make a reasonable attempt to determine immigration status, unless doing so will "hinder" the investigation. After an arrest, "[a]ny person who is arrested shall have the person's immigration status determined before the person is released." Verification is to come from federal authorities, and state detention pending verification is mandatory. The language of the statute seems to say that an individual arrested must be detained even if the state drops the charge that led to the arrest.
• Section 3, which makes it a state crime to fail to register with the federal government as an alien and carry those registration documents. (Federal law already requires both.) It does not apply to "a person who maintains authorization from the federal government to remain in the United States."
• Section 5(c), which makes it a state crime for undocumented aliens "to knowingly apply for work, solicit work in a public place, or perform work as an employee or a contractor." (Federal law currently imposes no penalty on aliens who work or seek work.)
• Section 6, which empowers state law enforcement to arrest without a warrant any person if the officer has probable cause to believe that "the person to be arrested has committed any public offense that makes the person removable from the United States."

The provisions form a whole, which is aimed at jailing the undocumented: 2(B) requires police investigate the immigration status of people stopped for other crimes. If they turn out to be undocumented, they may then be sent to prison under Section 3 for not carrying registration papers they by definition can't have. If they have jobs, they can also be imprisoned for violating 5(c). Section 6 expands the power to detain because a person may once have committed a crime in another state-even if that person has served a full sentence, and even though the person is legally in the United States because the federal government waived deportation. Being "removable," in and of itself, is not a state or federal crime.

But Judges are like young kids playing with Barbies: they like to pull things apart and play with different parts. So the Court treated each provision as if it were independent of the others. They discussed Section 2 only in connection with the arrest-how long would a "suspect" be held? Remarkably, Justice Stephen Breyer suggested reinterpreting the statute to save it: "Can I make the following statement in the opinion ... 'We interpret ... Section 2(B) as not authorizing or requiring the detention of any individual under 2(B), either at the stop or in prison, for a significantly longer period of time than that person would have been detained in the absence of 2(B).'" (The answer is no: a federal court has no power to narrow or limit a state statute; Breyer's construction would have, as far as I can tell, no effect).

Breyer and Justices Samuel Alito and Sonia Sotomayor worried that the 2(B) verification requirement would result in detention of American citizens who just happened to be out without papers-jogging, Breyer suggested, with nothing but a bottle of Pedialyte. Justice Sotomayor asked Verilli whether the federal databases included a list of all citizens. She dryly alluded to the forbidden topic of profiling: "Today if you use the names Sonya Sotomayor, they would probably figure out I was a citizen. But let's assume it's John Doe, who lives in Grand Rapids." No, Verilli said; there is a list of passport holders, but if you don't have a passport, the state inquiry will come back with nothing-the same reading as if you were undocumented.

The Justices fretted that Section 3 imposes criminal sanctions that duplicate federal laws. Section 5 conflicts with federal policy: In 1986, Congress imposed civil and criminal penalties on employers who knowing hire undocumented aliens, but chose not to penalize undocumented workers. Can Arizona in effect adopt the policy Congress rejected? Finally, Section 6 might require local officers to engage in a tricky inquiry about whether an out-of-state offense is one for which "removal" is required.

Verilli tried to direct the Court's attention to the overall effect of 1070. "[Y]ou're going to have a situation of mass incarceration of p[people who are unlawfully present. That ... poses a very serious risk of raising significant foreign relations problems. And these problems are real." Justice Scalia had a ready answer for that one: "[C]an't you avoid that particular foreign relations problem by simply deporting these people? ... [W]e have to enforce our laws in a manner that will please Mexico. Is that what you're saying?"

Scalia asked Verilli why Arizona can't have its own immigration policy: "What does sovereignty mean if it does not include the ability to defend your borders?"

Verilli responded, "[t]hey cannot do what Arizona is seeking to do here, Your Honor, which is to elevate one consideration above all others."

Justice Samuel Alito focused on dismembering the "federal discretion" argument. This is a case of federal pre-emption, and pre-emptive power has to be exercised by Congress, he said. But Verilli was arguing pre-emption because S.B. 1070 worked against executive priorities. "Suppose that the federal government changed its priorities tomorrow... . Would the Arizona law then be un-preempted?" It was Congress, Verilli responded, that explicitly gave the executive the power to set those priorities.

With Justice Elena Kagan conflicted out, the Court may strike some sections and affirm the rest. On some points it may divide 4-4, affirming the lower court opinion that struck them down. That would leave those issues to be settled another day.

Some of those have already been raised in civil rights suits pending below brought by advocacy groups who are not afraid to point out what everybody knows: Ethnic profiling is at the heart of 1070 and other state laws like it. Can "driving while brown" be made a state crime?