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Next at the Supreme Court: A Deeply Cruel Policy Comes Before the Justices

When Governor Jan Brewer signed S.B. 1070—Arizona’s notorious immigration law—in 2010, she didn’t just enact what was, at the time, the harshest immigration regime in the United States; she also inspired copycat bills in a number of other states. But with the Supreme Court set to consider the constitutionality of Arizona’s law—oral arguments for Arizona v. United States will be heard on Wednesday, and the Court’s decision is expected by the end of June—there’s a lot more at stake than the fate of S.B. 1070 and its imitators. What hangs in the balance is an unprecedentedly harsh, but increasingly popular, philosophy of combating illegal immigration.

S.B. 1070 cemented Arizona’s position at the vanguard of a hard-line immigration enforcement movement. The law mandates that police officers ask for identification papers whenever they stop someone if they have “reasonable suspicion” that the person is in the United States illegally. It also requires the police to check the immigration status of anyone arrested in Arizona, and it makes it a crime for undocumented immigrants to seek work in Arizona. These provisions have not only led to a greater role for police officers in immigration enforcement, they have criminalized certain actions where the federal government has declined to do so—most notably, in making it a misdemeanor for immigrants to lack immigration documents. (Historically, lacking legal immigration status has been categorized as a civil, not criminal, offense; deportation is a civil, not a criminal, penalty.)

These provisions gave other state legislatures a model for what is known as “attrition through enforcement”—essentially, the idea that life can be made so difficult for illegal immigrants that they will leave the U.S. voluntarily. (This is what Mitt Romney was referring to when he spoke of “self-deportation” at a January debate.) To date, five states—Utah, Alabama, South Carolina, Georgia, and Indiana—have passed laws that mimic S.B. 1070, and measures employing similar tactics have been pushed in more than two dozen others.

These laws have met judicial resistance. In April of last year, the Ninth Circuit Court of Appeals upheld an injunction against enforcing four key provisions of the Arizona law: the criminalization of illegal status; the criminalization of seeking work without authorization; the warrantless arrest of anyone believed to have committed a “removable offense” under federal immigration law; and what the law’s critics call the “papers, please” section. This last provision, perhaps the most notorious, requires law enforcement officials to ask for identification from anyone they reasonably suspect to be in the U.S. illegally. Courts have blocked similar provisions of the S.B.1070–style laws passed by South Carolina, Georgia, Utah, and Indiana. In Alabama, certain parts of a similar law were enjoined, but the “papers, please” provision was allowed to go forward.

At the Supreme Court this week, the federal government will seek to demonstrate that Arizona has unconstitutionally overstepped its authority, preempting the federal government’s jurisdiction over immigration policy. (The Supremacy Clause in Article VI of the Constitution holds that state laws cannot conflict with federal laws.) Arizona argues that S.B. 1070 does not preempt, but rather complements,federal efforts. But critics respond that many provisions of S.B. 1070, by mandating maximum enforcement, conflict with federal policy that directs enforcement resources toward “high-priority” immigrants.

At this point, it’s not clear how the Court will rule. Marshall Fitz, an immigration law expert at the Center for American Progress, says that the Court is likely to strike down the criminalization of soliciting work and being undocumented. Congress has explicitly rejected criminalizing the former, and existing law has always considered the latter to be a civil offense. “[Congress] said they would not impose sanctions on people, but on employers” when illegal immigrants seek work, says Muzaffar Chishti, who directs the office of the Migration Policy Institute at NYU Law School, referring to a 1986 debate. “It would be stunning if they found those two provisions constitutional. It would directly reverse precedent and preemption law,” Fitz says. But the other two provisions could be tougher to defeat.

Whatever the Court’s determination, it will have effects beyond Arizona. “If the Court were to bless Arizona’s law,” says Fitz, “it would effectively enable the states that have their comparable provisions on hold to go forward.” That means, at the very least, that Georgia, South Carolina, Indiana, and Utah will likely proceed with their laws. (Alabama’s law goes beyond Arizona’s in some respects, so even if the Court blesses S.B. 1070, it could still face some roadblocks.) Chishti agrees, and adds that sanction by the Court could give states that have flirted with similar laws “clear leeway.”

A ruling in favor of Arizona would have cultural and social consequences as well, say opponents: It would essentially bless racial- and ethnic-profiling, and create profound inconsistencies in policies between different states. “On an important issue like immigration, where we’re supposed to speak with one voice, you’ll have a cacophony of voices,” Chishti warns. The split between welcoming and unwelcoming states could become even starker. Besides the states whose existing laws will likely move forward, the list of additional imitators, according to an analysis by the Center for American Progress as well as my reporting, could eventually include Virginia, Missouri, Kansas, Iowa, New Hampshire, Tennessee, Kentucky, North Carolina, Florida, Oklahoma, and Mississippi. 

On the other hand, of course, the Court could strike down S.B. 1070, which might cool some of the enthusiasm for similar laws in state legislatures across the country. Though, with another election this fall and anti-immigration sentiment still a potent force, it’s unlikely we’ve seen the end of heavy-handed attempts at “self-deportation.”

Nathan Pippenger is a reporter-researcher at The New Republic.