PHOENIX -- The nation's high court on Monday cleared the way for Arizona to force state and local police to check the immigration status of those they have stopped.
Without dissent, the U.S. Supreme Court said there is nothing inherently wrong with the requirement for police to make such an effort when there is reason to believe a person is in this country illegally. Justice Anthony Kennedy, writing for the court, said there was no reason to believe, at least at this point, that provision of SB 1070 would be enforced in a way to violate the rights of individuals.
And the justices specifically rejected arguments by the Obama administration, which sued the state in 2010, that such a mandate illegally infringes on the exclusive right of the federal government to regulate immigration.
But the justices fired a warning shot across the bow of police agencies in Arizona, saying if there is evidence that people are being unfairly stopped or detained for long periods of time they would take another look at the law -- and potentially preclude the state from enforcing it.
"We know the critics will be watching and waiting, hoping for another opportunity to continue their legal assault against our state,' Gov. Jan Brewer, who signed the legislation two years ago, said at a press conference following Monday's ruling.
The governor said, though, she is not concerned, saying she has "faith in law enforcement.' And Brewer pointed out that that after SB 1070 was approved in 2010 she directed the Arizona Peace Officer Standards and Training Board to come up with materials "to ensure our officers are prepared to enforce this law efficiently, effectively and in a matter consistent with the Constitution.' Those materials were updated earlier this month in anticipation of today's ruling.
"Civil rights will be protected,' she said. "Racial profiling will not be tolerated.'
A bigger question, though, will be whether the lone surviving provision from the lawsuit will mean anything when it is finally implemented.
Senior officials at the Department of Homeland Security said Monday the agency will not alter its policy of focusing enforcement on criminals and repeat offenders -- and of refusing to respond to calls by local police about illegal immigrants who do not meet those standards. And it does not undermine the president's decision to refuse to pursue those who came here as children and have been here at least five years.
In fact, ICE on Monday summarily revoked agreements it has had with several law enforcement agencies around the state, including the Department of Public Safety, which had given their specially trained officers authority to enforce immigration laws by themselves.
A senior official for the Department of Homeland Security said there were "a variety of reasons' for that decision. But the official, who would not allow his name to be used, acknowledged that at least part of that was Monday's ruling.
Monday's ruling also took away any chance that Arizona could prosecute, on its own, those who officers determine are in the country illegally.
In a split decision, the majority voided three other sections of SB 1070 which would have given state and local police the power to charge illegal immigrants with violating state laws for:
- Seeking work in Arizona without being in this country legally;
- Failing to carry federally issued registration cards;
- Allowing warrantless arrests if there is "probable cause' a person committed an offense that makes them removable from the country under federal law.
The justices said all three provisions illegally conflict with federal law.
Brewer sidestepped questions about whether all that makes the surviving section from the lawsuit meaningless, as officers would be required to simply release those they have stopped regardless of their immigration status.
"I believe we have accomplished a lot,' she responded. "We will be instructing law enforcement to begin practicing what the United States Supreme Court has upheld.'
But former Senate President Russell Pearce, who crafted the original law, said the split decision, coupled with ICE priorities, mean legal limits remain on what police can do.
"This is a challenge,' he said. "They will take some, they may not take all,' Pearce said of ICE officials notified of people not in this country legally.
And Rep. John Kavanagh, R-Fountain Hills, recognized the importance of those three sections being voided.
"It's unfortunate that we lose those provisions,' he said, saying they would have allowed the state to pursue illegal immigrants even in the face of lack of federal interest. Kavanagh said that is why the country needs a president who will enforce the law.
Victor Viramontes, senior counsel for the Mexican American Legal Defense and Educational Fund, said other hurdles remain for Arizona.
He pointed out that the court said it would allow police to detain those they suspect of being here illegally. But the justices said that permission may have to be revisited if it turns out that police are abusing the power and detaining people longer than necessary.
Kennedy said, though, there are ways to enforce the law without violating individual rights.
As an example, he used a situation where someone in Tucson is stopped for jaywalking and police have reason to believe the person not in this country legally. Kennedy said it will be up to Arizona judges to determine how long that person can be held while that inquiry is made.
"The state courts may conclude that, unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry,' Kennedy wrote.
He said that, absent some showing of actual abuse, any move to void the law is premature at best.
"There is a basic uncertainty about what the law means and how it will be enforced,' Kennedy wrote. "At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume (the section) will be construed in a way that creates a conflict with federal law.'
In her response to the ruling, the governor said Arizona did not "seek the task of having to confront illegal immigration -- or pick the legal fight with the Obama administration which sued after SB 1070 was enacted.
"We cannot forget that we are here today because the federal government has failed the American people regarding immigration policy, has failed to protect its citizens, has failed to preserve the rule of law and has failed to secure our borders,' she said.
Kennedy acknowledged that responsibility, saying there needs to be "searching, thoughtful, rational civic discourse' on accomplishing that.
"Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues,' he wrote. "But the state may not pursue policies that undermine federal law.'
How quickly police can begin enforcing what foes of the law called the "papers please' provision is unclear.
In issuing the ruling, the high court sent the case back to U.S. District Court Judge Susan Bolton who issued the original injunction just days before SB 1070 was set to take effect. That process could take weeks.
While the decision to let Arizona enforce the part of the law about questioning those they stopped was unanimous, that was not the case in voiding the other three provisions.
In his dissent, Justice Antonin Scalia said he sees no conflict between federal immigration laws and the rest of what is in SB 1070.
"The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively,' he wrote. "If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.'State Sen. Jerry Lewis, R-Mesa:
Regardless of how one feels about immigration, one thing is abundantly clear: we can do better. Instead of politicizing such a critically important issue, all of us -- Republicans, Democrats, Independents, and Libertarians -- should come together to find a permanent solution that keeps our border secure, strengthens our economy, strengthens families, and allows law-abiding immigrants who want to work to do so legally.
Congressman Ron Barber:
SB1070 was an expression of Arizona?s frustration ? but it did nothing to make our border secure, as even Gov. Jan Brewer has admitted. We must give renewed attention to stopping the drug cartels that have inflicted their violence on so many innocent people. Today?s court decision leaves open the essential question of how we make sure that all Americans enjoy the protections against discriminatory treatment that are guaranteed by our Constitution and it also still fails to offer any remedy for securing our border.
I would have preferred to see the Supreme Court give more latitude to states, not less. And the states, now under this decision, have less authority, less latitude, to enforce immigration law.
Tucson Police Chief Roberto Villasenor:
There is a body of case law defining what constitutes reasonable suspicion in other contexts, but no such guidance exists regarding illegal immigrants, and SB 1070 does not define the term. Under the Supreme Court decision, police departments in Arizona must enforce Section 2(B), and no one respects the authority of the courts more than police chiefs, so we will do our best to enforce the law. But we are in uncharted territory on this issue.
Congressman Trent Franks:
The Supreme Court today affirmed what proponents of SB 1070 have long held: that the core provision of the bill is not unconstitutional and, moreover, is in perfect keeping with current immigration law, which the Obama Administration has simply decided it'd prefer not to enforce. Today's decision is a victory both for the state of Arizona and for every state struggling under the burden of a federal government that is willingly and shamefully derelict in their duty to control border crime.
Anthony D. Romero, ACLU executive director:
By reinstating the ``show me your papers' for now, the Court has left the door open to racial profiling and illegal detentions in Arizona. The ACLU has amassed an $8.77 million war chest to fight those battles in court and to counter any and every anti-immigrant copycat measure in other states. The xenophobic virus in Arizona must be contained before it spreads to other states. These laws will devastate local economies, undermine law enforcement and pit neighbor against neighbor. It?s a toxic combination that threatens basic American values.
Thomas Saenz, president and general counsel, MALDEF:
By striking down three of the four provisions before the Court, the decision sends a strong warning to any states or localities that have enacted or that may be considering enacting their own immigration regulation schemes. In short, the Court?s decision should bring to a grinding halt the machinery of intolerance and racism that has promoted these laws. Arizona, in particular, has paid a very high price for what amounts to a very limited, even Pyrrhic, victory today.
Miriam Yeung, executive director, National Asian Pacific Women's Forum.
SB 1070, even with some provisions removed, threatens to tear families apart and create a dangerous level of mistrust between law enforcement and women immigrants who fear detention. By upholding one of the most harmful provisions of the law, the U.S. Supreme Court has set a dangerous precedent.
Janet Napolitano, homeland security secretary:
The Court?s decision not to strike down Section Two at this time will make DHS? work more challenging. Accordingly, DHS will implement operational enhancements to its programs in Arizona to ensure that the agency can remain focused on its priorities.
House Speaker Andy Tobin:
It is unfortunate the Obama Administration is not interested in enforcing the law and attempted, through Attorney General Holder, to prevent SB 1070 from being implemented. SB 1070 would not have been necessary had the administration been willing to support Arizona with appropriate enforcement strategies.
State Senate President Steve Pierce:
Our state has grown frustrated by the lack of security at our border with Mexico and inaction by the federal government. SB 1070 grew out of that frustration. It was a common sense bill that I supported, along with nearly every member of our Caucus.
Todd Landfried, spokesman, Arizona Employers for Immigration Reform:
We hope that this important decision will discourage states from considering state--?level immigration laws and push Congress to directly address the issue of immigration reform expeditiously in a practical and positive manner that helps our businesses, economy and country succeed and grow while ensuring our Nation?s security.
Caroline Isaacs, director, American Friends Service Committee Tucson office:
Today?s ruling unfortunately upholds the worst part of this mean-spirited law, even as it overturns other sections. In effect, it legalizes racial profiling. How can law enforcement know a person?s immigration status simply by looking at them? Most troubling is this decision undermines the moral fiber of the U.S. Constitution, and can be used by other states to enact laws that also enable racial profiling.
I am pleased that the Supreme Court has struck down key provisions of Arizona's immigration law. 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. At the same time, I remain concerned about the practical impact of the remaining provision of the Arizona law that requires local law enforcement officials to check the immigration status of anyone they even suspect to be here illegally. I agree with the Court that individuals cannot be detained solely to verify their immigration status. 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 recognizes.
Phoenix Mayor Greg Stanton:
Today's Supreme Court decision that much of SB 1070 is unconstitutional is a stark reminder of the need for Congress to act immediately on comprehensive immigration reform. It also reminds us that our State Legislature should stop focusing on divisive issues and instead spend their time on job creation and smart economic development for the State of Arizona.
Ali Noorani, executive director, National Immigration Forum:
Just as the nation is inching closer to a consensus on the need for solutions on immigration, the Supreme Court is dividing the nation. While the Supreme Court largely agreed that S.B. 1070 goes against our Constitution, it still left one dangerous provision, Section 2 (B) which is the pointy end of the sword of the Arizona immigration law. The implementation of the racial profiling inherent in Section 2(B) will cause irreparable harm in Arizona.
Alfonso Aguilar, executive director of the Latino Partnership for Conservative Principles:
This is a big victory for those of us who thought SB1070 was a bad law that unfairly criminalized undocumented immigrants. The Court today invalidated most of the statute and even left open the possibility that the only clause that they didn?t strike down - which allows state police to check the immigration status of anyone they detain - be eventually challenged in federal court again and found unconstitutional.
Bill Montgomery, Maricopa County attorney:
Earlier this month, the President played election year politics, pandering without offering a real solution to matters of great concern to Arizona and our Nation. Today, the Supreme Court upheld the rule of law. Tomorrow, Arizona law enforcement will (ITALICS) continue (ROMAN) to do their job on our behalf, respecting the civil rights of all and upholding our state and federal constitutions and real prosecutors will exercise true discretion without violating our oath to uphold the law.
Jon Kyl and John McCain (joint statement):
While we still want to fully review the Supreme Court?s decision, today?s ruling appears to validate a key component of Arizona?s immigration law, SB 1070. The Arizona law was born out of the state?s frustration with the burdens that illegal immigration and continued drug smuggling impose on its schools, hospitals, criminal justice system and fragile desert environment, and an Administration that chooses to set enforcement policies based on a political agenda, not the laws as written by Congress.
Regina Jefferies, chair, Arizona chapter, American Immigration Lawyers Association:
Arizona AILA has every expectation that law enforcement will follow the law and treat everyone, regardless of race or nationality, with dignity and respect. But we?ll also serve as watchdogs to make sure that happens, and provide representation to those who need it, to make sure everyone is treated fairly. The U.S. Supreme Court?s decision today allowing the ``papers please" provision of SB 1070 to go into effect doesn?t make it smart policy, not for our economy, not for diversity and not for human rights.
House Minority Leader Chad Campbell, D-Phoenix.
The Supreme Court ruling on SB1070 is not surprising. What we need is comprehensive immigration reform and border security so we can solve this issue for the long-term, not more divisive legislation and bickering. In light of today?s ruling, I ask all leaders at every level of government to put aside their political agendas and partisanship to work together on comprehensive, fair and effective immigration reform and border security.
Assistant House Minority Leader Steve Farley, D-Tucson:
Arizonans expect and deserve reasonable immigration reform. SB 1070 is a far cry from reasonable. It lets politicians get away with political grandstanding instead of enacting real reform. We need substantive reform and we need to ensure our police officers have the tools they need to crack down on true criminals and keep our communities safe and secure.