Erika Ovalle joined several dozen activists in the Phoenix heat outside the Immigration and Customs Enforcement office to protest the U.S. Supreme Court decision they say opens the door to racial profiling in Arizona.
“People are living in fear,” said Ovalle, 32, a U.S. citizen who volunteers with Puente Movement, an immigrant-rights group in a state that has become the epicenter of the nationwide battle over illegal migration. “It is criminalizing brown skin.”
As police prepare to begin enforcing the sole provision of Arizona’s first-of-its-kind immigration law to withstand the high court’s scrutiny, supporters and opponents agreed on one thing: The statute will face more legal challenges, especially if concerns over profiling or prolonged detentions materialize.
The justices in Washington struck down three provisions of the Arizona law that created state-level immigration crimes, in a ruling that reaffirmed the federal government’s exclusive role in setting policy. They left intact the most contentious provision -- known as “show me your papers” -- that requires local police to check the immigration status of anyone they suspect is in the country illegally during stops, arrests or detentions. The justices said the implementation had to respect constitutional protections.
The close scrutiny of how the law is enforced will likely shape how police in Arizona, and in four other states that have similar provisions in their laws, proceed.
“Officers will have to do it very, very carefully,” said Steven Schwinn, an associate professor at the John Marshall Law School in Chicago. “If they start racially discriminating or holding people longer than they should be, then that kind of enforcement would be subject to a constitutional challenge.”
The ruling gives President Barack Obama’s administration most of what it sought when it sued to block the Arizona law. Supporters of the law said the federal government isn’t doing enough to crack down on what officials have estimated are the 11.5 million people in the country illegally. The decision may undercut parts of similar laws in the other states and will have repercussions for the November presidential election as Obama and Republican candidate Mitt Romney vie for Hispanic votes.
Arizona, where officials say the 370-mile border with Mexico is the crossing point for half the nation’s illegal aliens, became the first state to enact such a law, in 2010. Since then, Alabama, South Carolina, Georgia, Utah and Indiana have passed their own measures aimed at illegal immigration. All are facing court fights.
Arizona Governor Jan Brewer declared that the court ruling “vindicated” her state’s efforts to fight illegal immigration, even as she said additional legal challenges were likely.
“The eyes of the world will be upon us,” she said at a press conference. Earlier this month, Brewer, a Republican, ordered police agencies to review a training DVD in preparation for the ruling. Police, she said, “have been trained so that they can enforce this law efficiently, effectively and in harmony with the Constitution.”
Maricopa County Sheriff Joe Arpaio, who has become the face of local immigration enforcement and drawn nationwide scrutiny for staging what he calls “crime-suppression” sweeps in Latino communities, said after the ruling that he’ll do nothing different.
Civil rights groups said they were already building cases. Anthony Romero, executive director of the American Civil Liberties Union, said the group and its allies have amassed an $8.7 million war chest to fight state immigration enforcement.
“If it takes millions of dollars to restore this nation of immigrants, so be it,” he said at a press conference with other groups in Washington. The ACLU has joined in several other suits challenging the laws in Arizona and other states, most of which were put on hold pending the high court ruling. “We will bring these lawsuits wherever and whenever they come.”
In the 5-3 ruling, the court said states can help the federal government enforce its immigration laws yet suggested they can’t enact their own penalties for immigration-related violations.
The remaining provision of the Arizona law envisions police officers performing status checks by contacting U.S. Immigration and Customs Enforcement, the federal agency that maintains a database of immigration records.
Congress “has encouraged the sharing of information about possible immigration violations,” Justice Anthony Kennedy wrote for the majority.
Kennedy suggested that the upheld provision would be invalid if it caused police to hold people longer than they otherwise would.
“Detaining individuals solely to verify their immigration status would raise constitutional concerns,” he wrote in the opinion, in which he was joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.
Kennedy left the door open for other lawsuits, saying the ruling “does not foreclose other pre-emption and constitutional challenges to the law as interpreted and applied after it goes into effect.”
What is left, if implemented in the narrow way the court seemed to lay out in its opinion, almost mirrors existing federal policy, said Adam Cox, a professor at New York University School of law.
“This is a near-complete victory for the federal government, and I don’t think the majority opinion confers additional authority on the states to implement immigration laws,” Cox said. He said the U.S. Department of Homeland Security already requires the immigration status of those arrested to be checked -- and much effort beyond that in implementing the approved part of the law could lead the court to strike down the measure in the future.
While the Arizona law had been blocked by a lower court, a similar provision had been allowed to go forward in Alabama.
Mary Bauer, legal director for the Southern Poverty Law Center in Montgomery, which challenged Alabama’s law, said she expects further challenges based on civil-rights violations for detainees.
Her office has already seen evidence that immigrants are being detained longer than necessary and that the enforcement is being done in a racially discriminatory way, she said. The center has heard from individuals who were detained even after ICE verified their legal status, Bauer said.
“It was like the sheriffs didn’t want to believe it,” she said.
In Arizona, although ICE will verify the immigration status of people stopped by police, it doesn’t have a big enough staff to respond in person to every call, two senior administration officials told reporters on a conference call, officials said.
The agency will focus its efforts on people who are priorities for deportation, such as national security threats, convicted criminals or recent border crossers, said the officials, who described the department’s policy on the condition that they not be named.
That means people stopped by Arizona police and who don’t fall into the priority categories won’t be deported -- a point that Arizona’s lawyer, Paul Clement, made during oral arguments to the court. Federal immigration officials are needed to interview, detain and remove illegal immigrants.
Maricopa County’s Arpaio, who learned about the court’s ruling while waiting to appear on ABC News, said he was disappointed that the part of the Arizona law that would have allowed local police to detain illegal immigrants on state law violations was struck down.
“The question is when we stop someone and don’t have a charge against them but they are here illegally, what do I do with that person?” asked Arpaio, whose county is the largest in Arizona. He said he’s concerned the federal government will let most illegal immigrants he arrests go free.
“What do I do with the person? Do I dump them on the streets and say ‘Welcome to the United States of America?’”
To contact the reporter on this story: Amanda Crawford in Phoenix at firstname.lastname@example.org
To contact the editor responsible for this story: Stephen Merelman at smerelman@bloomberg.