Wednesday, June 27, 2012

A significant win for Arizona illegal immigrant law

The US Supreme Court upheld the most controversial element of the legislation, while overturning three other parts by declaring that immigration remains a federal, rather than state, responsibility.

In an opinion by Justice Anthony Kennedy, the country's highest court by an 8-0 vote upheld the part of the law requiring police officers to check the immigration status of people they stop for any reason.

But in a split verdict, the justices also ruled that the three other provisions that were challenged in court by the Obama administration went too far.

These three provisions required immigrants to carry immigration papers at all times, banned illegal immigrants from soliciting work in public places, and allowed police arrest of immigrants without warrants if officers believed they committed crimes that would make them deportable.

The votes on those provisions were either 5-3 or 6-2, with the more conservative justices in dissent.

According to some analysts it appears the Supreme Court is leaving it to lower courts to decide whether the “show me your papers” law can actually be enforced without breaking civil rights laws.

Some doubt that is possible.

“[The laws] are not designed to pick up Canadians,” says Gary Segura, a Stanford political scientist and co-founder of the polling firm Latino Decisions.

In fact the “show me your papers” law, drafted by Kris Kobach, the Secretary of State of Kansas, says explicitly that it embodies an "attrition through enforcement" doctrine - that is, it is designed to make life in Arizona so fearful and unpleasant for undocumented immigrants that they leave.

Five other states have similar legislation pending as they waited for the outcome of the Obama administration's challenge to Arizona's law.

Both the state of Arizona and the Obama administration, which challenged the law in the Supreme Court, have claimed victory.

“Today's decision by the US Supreme Court is a victory for the rule of law. It is also a victory for … all Americans who believe in the inherent right and responsibility of states to defend their citizens,” said Arizona's Republican mayor, Jan Brewer, in a statement.

President Barack Obama said: “What this decision makes unmistakably clear is that Congress must act on comprehensive immigration reform. A patchwork of state laws is not a solution to our broken immigration system – it's part of the problem.”

But he said he was concerned with the remaining elements of the law.

“No American should ever live under a cloud of suspicion just because of what they look like. Going forward, we must ensure that Arizona law enforcement officials do not enforce this law in a manner that undermines the civil rights of Americans, as the Court's decision recognises.”

Professor Segura said President Obama's partial legal victory could turn out to be a complete political victory.

He said the President had demonstrated to Hispanic voters, who had been disappointed in him over his first term, that he is willing and able to act on their behalf.

In addition, because the most draconian element of the law still stands, it could motivate more to vote in November.

Polling by Latino Decisions shows that even third and fourth generation Latino voters remain scared of the so-called “check your papers” law.

The Hispanic vote could be significant to the election outcome in five states, including Nevada, New Mexico, Florida, Indiana, North Carolina and even staunchly Republican Arizona.

Though the law has proved popular among Arizona voters, many of the state's various police agencies oppose it, fearful not only of possible civil rights suits against them, but of the huge increase in their workload should they be required to check the immigration papers of everyone they come into contact with.


Next stop for Arizona immigration law: Back to the courts?

The basis for "reasonable suspicion" will be the issue but not having a native command of English should emerge as a reasonable criterion for that.  Only suspicion is required, not certainty

The nation’s top justices on Monday struck down three sections of SB 1070 but unanimously upheld the most-discussed provision: Section 2(B) requires police to check the immigration status of people they stop, detain or arrest for other legitimate reasons “if there’s reasonable suspicion” the person is in the country illegally.

But exactly how local police will go about enforcing that provision is raising more questions than answers. Enforcement had been put on hold pending the Supreme Court decision; lower courts must lift the injunction before it can take effect.

Even the Supreme Court justices hinted that they expect the provision to be legally challenged again.

“There is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume 2(B) will be construed in a way that creates a conflict with federal law,” the high court said.

The Supreme Court declared three parts of Arizona's immigration law unconstitutional, but unanimously upheld the most controversial part. Now the high court is expected to make a ruling on "Obamacare" on Thursday. NBC's Pete Williams reports and NBC's Chuck Todd and Professor Noah Feldman weigh in.

“This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.”

The American Civil Liberties Union says it is exploring legal challenges to keep “show me your papers” from ever taking effect.

“The Supreme Court vacated the injunction against it but took pains to point out the potential constitutional problems that are inherent in Section 2(B) and drew a firm line in the sand that the state cannot cross,” said Cecillia Wang, director of the ACLU Immigrants' Rights Project. “We are going to be in court bringing new claims and evidence to stop 2(B) again.”

Among the possible claims are that the provision violates the Fourth Amendment right against unreasonable searches and seizures and that it invites racial profiling, ACLU officials say.

Joe Rubio, lead organizer for the Arizona Interfaith Network, a coalition of religious groups that opposed SB 1070, said the provision “leaves a nebulous area” if it goes into effect.

MSNBC's Thomas Roberts talks to NBC News Justice Correspondent Pete Williams and Sheriff Larry Dever of Cochise County, Ariz., shown here, about the ripple effect of the Supreme Court's ruling.

“It’s going to be important that the state monitors very closely how police deal with immigrants during regular stops and make sure racial profiling does not occur,” Rubio said.

“I think we’re going to have a few months here where people are suspending judgment to see how it’s going to be implemented.”

Jim Gilchrist, founder and president of the Minuteman Project, an anti-illegal immigration group that recruits volunteers to patrol the U.S. border with Mexico, said the Supreme Court decision “left vague” the fate of enforcement of immigration laws by local police.

“Police will be able to ask (about immigration status); however, that’s all they can do,” he said.

“Nobody’s really getting serious about this. Everybody keeps kicking the ball around the court.”

The interpretation of Section 2(B) also could put law officers in a precarious bind. There are no written instructions on how long local police must wait for federal immigration officials to respond, for example, when they encounter someone they suspect is illegal.  And immigration checks could open police up to accusations of racial profiling.

"Talk about 'no win' - if they find the person is not in authorized status, what do they do? Hold them for ICE which doesn't want them? Charge them with some state crime?" said Margaret Stock, an immigration attorney who has has testified before Congress on immigration, homeland security and military issues.

"If they make a mistake, they get sued. If they make too many mistakes, the rest of the statute gets enjoined as unconstitutional as enforced."

"We're going to get sued if we do. We're going to get sued if we don't. That's a terrible position to put law enforcement officers in," Pima County Sheriff Clarence Dupnik, whose territory covers much of southern Arizona, told The Associated Press.

Tucson police Chief Roberto Villasenor told the AP he estimates the statute will result in 50,000 additional calls a year to federal immigration authorities in his city alone.


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