Arizona Immigration Case

The Supreme Court ended the 2012 term with the must-anticipated federal health care law decision. But the High Court also came out with several other notable decisions during the last week of its term.

In Arizona v. United States the Supreme Court was asked to decide the highly controversial law passed by Arizona in 2010 called the “Support our Law Enforcement and Safe Neighborhoods Act.” The official purpose of that legislation is to “discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.” But opponents feared that it would be open season for the harassment and persecution of individuals of Mexican descent.

In an opinion written by Justice Kennedy, the Supreme Court struck down various parts of the law as inconsistent with the authority of the federal government to control and issue policy affecting immigration and naturalization. However, the part of the law that was most dreaded by immigrant communities was left in place, at least, for now.

The Supreme Court peeled away pieces of the legislation that involved Arizona police and courts inserting themselves in the federal immigration and enforcement. The Court thus struck down a provision that allowed the state to punish aliens for failing to complete or carry alien registration papers, a provision making it a crime to work in Arizona if you are illegally present in the United States, and a law empowering state police officers to arrest you if there is probable cause that you have committed a public offense which makes you removable under federal law.

On the other hand, a provision of the law that civil rights advocates fear could lead to violations of privacy, discriminatory stops and searches, and harassment of hard-working people of Mexican descent was left in place. That law requires police officers to make a “reasonable attempt” to determine the immigration status of any person whom they have legitimately stopped for another reason if they have reasonable suspicion that the person is an illegal alien. The law also requires that law enforcement determine immigration status before releasing anyone who has been lawfully arrested. Considering that a lawful detention – the triggering event for the duty to inquire into immigration status – occurs on something as minor as a ticket for a traffic violation, it is easy to imagine law enforcement officers following Latino men around until they break a traffic law and using that as a pretext for an immigration detention. But, as Justice Kennedy pointed out, that would be a violation of the law, as applied. At this point, the court was adjudicating only a facial attack on the law. Until the law is implemented by Arizona officials and enforced by Arizona courts, it is premature to predict whether the law would in fact work such a violation of individual liberty.

So this is not likely to be the last time that the court considers this portion of the immigration law. Over coming weeks and months, criminal defense lawyers and civil rights advocates will be keeping a careful record of how it works in practice.