Last month, the U.S. Supreme Court decided Arizona v. United States, a closely watched case in which the federal government challenged Arizona's controversial immigration law, SB 1070. The decision and its impact has since been dissected in both legal and media circles. Perhaps more than anything, however, the immediate aftermath of Arizona highlights the host of difficult questions around state and local immigration enforcement that the Supreme Court didn't answer.
Specifically at issue in Arizona were four provisions of SB 1070: Section 3, which criminalizes willful failure to complete or carry immigration papers; Section 5, which makes it a crime for undocumented noncitizens to work; Section 6, which authorizes the warrantless arrest of any person police have probable cause to believe is removable from the United States; and Section 2B, which requires law enforcement officials to verify the immigration status of any person lawfully stopped or detained when they have reason to suspect that the person is here unlawfully.
The Court cautiously upheld Section 2B -- at least for now -- but struck down sections 3, 5, and 6. The fallout was immediate.
Arizona Governor Jan Brewer claimed victory, not just for Arizona but for the 10th Amendment, explaining that by upholding "the heart of SB 1070" the Court had reaffirmed "the inherent right and responsibility of states to defend their citizens." The Department of Homeland Security (DHS) responded by promptly terminating agreements that had authorized Arizona state and local law enforcement agents, under federal supervision, to enforce immigration law in the field. DHS also set limits on when its immigration officials should respond to a scene at the request of Arizona law enforcement, and set up a hotline to report civil rights violations. Governor Brewer railed against the "disarmament" of Arizona's immigration enforcement capabilities, calling the actions "a new low" for the Obama administration.
It bears emphasizing that the only question before the Court in this case was whether four provisions of SB 1070 were "preempted;" that is, whether Arizona overstepped its bounds by passing state legislation that undermines federal immigration law. Many other questions remain: Can "show me your papers" laws like Section 2B be implemented without racial profiling? What aspects of copycat laws now subject to constitutional challenges in states like Alabama, South Carolina, Georgia, Utah and Indiana will survive post-Arizona? And, in particular, how free are states and local jurisdictions across the country to choose a different path?
A longstanding battle being waged at both the state and local level over the government's Secure Communities program is in many ways the flip side of the Arizona fight. Under Secure Communities, fingerprints collected during the booking process that are regularly sent to the FBI to be checked against its criminal databases are also sent to DHS to be checked against its immigration databases. If there is an immigration "hit," Immigration and Customs Enforcement (ICE) is automatically notified. ICE can then issue a "detainer," or a request to local law enforcement to hold the person up to 48 hours beyond when he or she would otherwise be released so that ICE can assume custody.
The government describes Secure Communities as a simple information sharing mechanism. Some critics believe it's a dangerous deportation dragnet. The rub is that the federal government says the Secure Communities is mandatory -- and will be extended to all jurisdictions in the country by 2013 -- notwithstanding that some states and localities simply don't want it. Just last week, the Washington D.C. City Council passed legislation limiting the circumstances under which the District will honor immigration detainers. Other localities across the country have adopted, or are considering, similar limits on their cooperation with federal enforcement efforts. At the state level, the California Senate recently passed the Trust Act, legislation that would prohibit California law enforcement from complying with an immigration detainer unless the arrestee was convicted of a serious or violent felony and the detaining agency has adopted a plan to guard against racial profiling and other potentially damaging consequences of Secure Communities.
In contrast to Arizona, these and other states' and localities' view certain federal immigration enforcement efforts as overly harsh or detrimental and don't want to participate, at least not on the federal government's terms. What's the scope of their right to resist (rooted in the 10th Amendment or otherwise)?
The questions raised in Arizona and that remain in its aftermath lie at the heart of a series of ongoing tugs of war between the federal government and states and localities that are playing -- and in the absence of comprehensive immigration reform will continue to play -- a critical role in setting the boundaries of immigration enforcement. In Arizona, Justice Kennedy urged that these struggles take the form of a "searching, thoughtful, rational civic discourse." We at The Constitution Project (TCP) couldn't agree more, and in an effort to make a meaningful contribution to such a discourse, TCP has assembled a new Immigration Committee that includes members with widely divergent views and experiences who are eager to heed Justice Kennedy's call.
Although TCP has already made a few forays into immigration policy -- calling for reform of both the immigration detention system and the ways in which we use immigration law as a counterterrorism tool -- it is clearly an area where TCP's approach to assembling a panel of issue experts from across the ideological spectrum, then asking them to develop bipartisan, consensus-based solutions to tough constitutional questions, can be more fruitfully brought to bear. We look forward to being a part of the national conversation on this important issue.
This editorial was co-authored with Scott Roehm, Policy Counsel to the Immigration Committee at The Constitution Project.