Supreme Court to Arizona: SIT DOWN

A quick primer on what happened in yesterday's case, Arizona v. United States. There's been a lot of reporting (some of it inaccurate) about what the Court did and did not say.  I will try to keep it simple and basic, and commend folks to read the opinion for themselves: http://www.supremecourt.gov/opinions/11pdf/11-182b5e1.pdf.

Ok, so what happened.  Simply put, the Court reviewed a facial challenge to Arizona's anti-immigration law, SB 1070.  What's a facial challenge? This is where the Court is asked to rule on the permissibility of a law as it is written, not as it is applied.  Think of it this way - if Arizona had passed a law permitting indentured servitude, the state could be sued based on the legal theory that "on its face" the law violated the 13th Amendment to the U.S. Constitution - and the Court would dutifully rule as such.  There would be no need to see what protections the state put in place to regulate indentured servitude, it would simply be disallowed. 

In Arizona, three of the four provisions of SB 1070 were struck down on their face - that is, as a matter of law, without getting into questions of their implementation, they are unlawful.  The whys of this analysis are interesting to legal scholars, but my guess is that the average American is uninterested in concepts of federal preemption.  It is enough to say that the state cannot create a new state criminal violation for failing to carry an alien registration document (something already required under federal law and in a field where federal law is absolute (hence "preemption")); cannot create a state criminal violation for an "unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor”; and cannot allow police to “without a warrant, [] arrest a person if the officer has probable cause to believe . . . [the person] has committed any public offense that makes [him] removable from the United States.” This last finding was particularly damaging to those who think state and local law enforcement can expand their duties as immigration officers.  A six member majority reaffirmed the narrow circumstances that permit state officers to act in an immigration capacity.  The money quote from Justice Kennedy's majority opinion:

Federal law specifies limited circumstances in which state officers may perform the functions of an immigration officer. A princi­pal example is when the Attorney General has granted that authority to specific officers in a formal agreement with a state or local government. See §1357(g)(1); see also §1103(a)(10) (authority may be extended in the event of an “imminent mass influx of aliens off the coast of the United States”); §1252c (authority to arrest in specific circum­ stance after consultation with the Federal Government); §1324(c) (authority to arrest for bringing in and harboring certain aliens). Officers covered by these agreements are subject to the Attorney General’s direction and super­ vision. §1357(g)(3). There are significant complexities involved in enforcing federal immigration law, including the determination whether a person is removable. See Padilla v. Kentucky, 559 U. S. ___, ___–___ (2010) (ALITO, J., concurring in judgment) (slip op., at 4–7). As a result, the agreements reached with the Attorney General must contain written certification that officers have received adequate training to carry out the duties of an immigra­ tion officer. See §1357(g)(2); cf. 8 CFR §§287.5(c) (ar- rest power contingent on training), 287.1(g) (defining the18 ARIZONA v. UNITED STATES Opinion of the Court training). By authorizing state officers to decide whether an alien should be detained for being removable, §6 violates the principle that the removal process is entrusted to the discretion of the Federal Government. See, e.g., Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 483–484 (1999); see also Brief for Former INS Commissioners 8–13.)

So the state cannot create a parallel regime for alien registration documents, cannot make it a state law criminal violation to seek employment if you are an "unauthorized" alien and cannot grant state and local law enforcement the right to detain, without a warrant any person they have probable cause to believe has committed any public offense that makes him "removable" from the United States. Period. Paragraph.

So what of the so-called "papers please" clause - the idea that anyone can be stopped and asked for their "papers" - documents that prove they are in the country legally?  Here, we must distinguish between a facial challenge and an as applied challenge. Think of the Affordable Care Act.  If the Court were to say that on its face, they thought the ACA was constitutional, but reserved its right to review its legality when a person who was otherwise required to purchase insurance under the individual mandate did not and was assessed a penalty, they would be reviewing the law as applied (this is basically the argument Judge Brett Cavanaugh of the D.C. Circuit Court of Appeals accepted (in dissent)) in arguing that the Anti-Injunction Act was triggered by the ACA and therefore, the Court should not pass on the law's constitutionality until someone was subject to its penalties).  

What does all this fancy legal mumbo jumbo mean?  It means that the final provision at issue, Section 2(B) was not thrown out on its face, but the Court reserved its right to hear litigation based on the application of this provision by a person who was subject to it.  So what does Section 2(B) say?  Again, we look at Justice Kennedy's opinion:

Section 2(B) of S. B. 1070 requires state officers to make a “reasonable attempt . . . to determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Ariz. Rev. Stat. Ann. §11–1051(B) (West 2012). The law also provides that “[a]ny person who is arrested shall have the person’s immigration status de­termined before the person is released.” Ibid. The accepted way to perform these status checks is to contact ICE, which maintains a database of immigration records.

Three limits are built into the state provision. First, a detainee is presumed not to be an alien unlawfully present in the United States if he or she provides a valid Arizona driver’s license or similar identification. Second, officers “may not consider race, color or national origin . . . except to the extent permitted by the United States [and] Ari­zona Constitution[s].” Ibid. Third, the provisions must be “implemented in a manner consistent with federal law regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.” §11–1051(L) (West 2012).

So, contrary to a blanket "papers please" construct, this section of SB 1070 is somewhat limited.  First, it requires that a person be stopped, detained, or arrested for some other legitimate basis. In other words, you can't just stop someone based on, say, their skin color. Second, the officer must have reasonable suspicion that the person stopped, detained or arrested is an alien unlawfully present in the United States. Generally, reasonable suspicion is based on "specific and articulable facts," "taken together with rational inferences from those facts." (See, Terry v. Ohio). Assuming the first two elements are present, all state and local law enforcement can do is confirm the individual's immigration status with ICE (Immigration and Customs Enforcement) before the person is released. It does not allow the state to unilaterally deport the individual or act as its own ICE. 

And even here, the actions of law enforcement are severely proscribed.  First, a valid state driver's license or "similar" identification is presumptive evidence of lawful presence; Second, and more importantly, law enforcement cannot consider race, color or national origin in enforcing this provision except as permitted by law (which is to say, very very narrowly, if at all) and that the act must be implemented in a manner consistent with existing federal laws protecting a person's civil rights.  

Again, Scary Lawyer Guy, with the legal mumbo jumbo.  Bottom line it for us.  Ok. Simply put, the first person who is asked for his papers during the course of an otherwise legal stop, detention, or arrest who thinks the request is made based on his race national origin or ethnicity can file a lawsuit challenging the law as applied to him. Further, good luck being the chief of police drafting policies and procedures to comply with the statute. Not only will you subject the state to litigation, but you and your department may be on the hook for civil rights violations.  In short, the Court's opinion is likely to neuter any effort by law enforcement to use the law in large part because it's almost impossible to come up with a race/ethnicity/national origin neutral policy to ask people for their 'papers' without it including everyone, and the citizens of Arizona simply won't stand for it. 

In other words, the Court sent a clear message that engaging in what is, for lack of a better term, "racial profiling" is unacceptable, but in doing so, cut out the heart of what SB 1070 supporters wanted - the ability to stop people simply for "being brown." Moreover, even if police do create policies and procedures that somehow pass muster, all they can do is confirm a person's immigration status prior to release. They can't deport people, but rather, pass enforcement to the place the Court unmistakably said primary authority rests - the federal government.