The Supreme Court’s highly-anticipated decision in Arizona v. United States has widely been portrayed as a split, maybe even a victory for Arizona, because the court rejected a “facial challenge” to section 2(b), the inaccurately labeled “show me your papers” provision, allowing state and local police to investigate a person’s immigration status. Arizona Governor Jan Brewer claimed “victory,” and the Federation for American Immigration Reform, a restrictionist organization, called the decision “an important victory for the people of Arizona.” But a closer look shows that the victory is hollow, and gives Arizona little in the way of real power.
In fact, section 2(b) does not allow police to stop suspected unauthorized migrants solely to check their documents. It requires police to investigate only when, in the course of a lawful stop or arrest for some other offense, police develop reasonable suspicion that a person is undocumented. This was fine, all the justices agreed; police may question the individual about his or her status and may communicate with the federal government. In his partial dissent, Justice Alito observed that the section “adds nothing to the authority that Arizona law-enforcement officers ... already possess under federal law.” Even before S.B. 1070, the Supreme Court held that police were free to ask anyone questions about anything at any time (and people are of course free not to answer). And a 1996 federal law authorized state and local police to exchange information with federal immigration authorities.
So much for Arizona’s “victory”: The court upheld section 2(b) to the extent that it relied upon powers already extended by existing federal law. Those powers solely involve asking questions and sharing information, not, say, arresting people or charging them with crimes.
Everyone, including the police, is free to generate information and send it to the federal government. Justice Alito is right; as upheld, section 2(b) means little. If repealed tomorrow, Arizona police could still ask questions and check with the federal government. Of course, merely because something is legal doesn't make it wise.
To be sure, section 2(b) has the potential to be far more significant. It could be read to authorize continuing detention solely to investigate immigration status even after the original basis for the stop or arrest has ended. But the court warned that this and other broad readings raised serious constitutional questions. Further, the mandatory nature of 2(b) could lead to racial profiling or other improper enforcement; if so, that can also be raised later.
The court said nothing, however, about an unusual and potentially destructive provision of S.B. 1070, allowing private citizens to sue police agencies for failing to enforce section 2(b). Arizona police are thereby put in an impossible position: If they engage in racial profiling, or stop or detain people without sufficient cause, they can be sued under federal law. But if they fail to enforce the law aggressively enough, failing to stop or detain people when there is cause, they can be sued under S.B. 1070. They can avoid liability, it seems, only by being perfect.
The Arizona courts will have first crack at interpreting the private right of action under S.B. 1070. We suspect that those courts will recognize a healthy degree of discretion under the law.
Justices Thomas, Alito and Scalia each wrote a separate dissent, and their inability to agree on a single explanation for why the majority was wrong may suggest that the whole is less than the sum of the parts; that is, there is no unified countertheory to work toward.
In particular, Scalia’s dissent is sufficiently intemperate that it may give pause even to supporters of the law. He not only invoked state “sovereignty” in this context, suggesting that states should have substantial rights to exclude (or, one can only assume, admit) those it chooses. He noted that before 1875, states excluded many aliens, “including convicted criminals, indigents, persons with contagious diseases, and (in Southern states) freed blacks.” Shockingly, this paean to the good old days did not prevail.
Going forward, the ACLU, the Mexican American Legal Defense and Education Fund, and other groups will challenge S.B. 1070’s legal cousins in Arizona and in other states. For example, Arizona, Colorado, Florida, Oklahoma, Missouri, South Carolina and Utah have laws prohibiting transporting, concealing, harboring, or shielding undocumented noncitizens, and there is a strong argument that these statutes are unconstitutional for the same reasons as those state immigration laws struck down by the Supreme Court.
Nevertheless, while S.B. 1070’s critics won a surprisingly strong decision from the court, any victory is at best temporary. It resolves the status of none of the millions of unauthorized migrants. The decision merely reaffirms that the solution to America’s immigration challenges will not be found in the states; the buck has been passed back to where it started: Congress. For all of the president’s power, the executive branch only carries out the law; it does not make them. Only Congress can resolve the difficult policy choices we now face.
So how will it be resolved? History presents two paths. For almost a century and a half, federal courts have struck down state immigration laws, using the same rationale as the majority did here. On several occasions, Congress responded with harsh, sometimes racist legislation, such as the Chinese Exclusion Act. Is it inconceivable that a Republican Congress and a President Mitt Romney (who has chosen to be advised by S.B. 1070 author Kris Kobach) might conclude that “comprehensive immigration reform” is best achieved through a national policy of “voluntary self-deportation,” or by expressly authorizing states to enact programs like S.B. 1070? In that scenario, the “victory” for immigrants could suddenly start to seem Pyrrhic.
But history offers another possibility. Six times, beginning in 1893, when faced with large numbers of deportable noncitizens with sympathetic claims, Congress enacted major across-the-board amnesties. On many other occasions, Congress passed laws allowing executive waiver of deportation for worthy noncitizens on a case-by-case basis. That is, Congress has frequently concluded that respect for the rule of law did not require shattering families and deporting good workers.
We won’t predict which path Congress will take. But it is fair to say that when Congress has acted harshly toward immigrants, those decisions have not in retrospect been regarded as high points of the American tradition.