Supreme Court Allows Racial Profiling Provision in Arizona Immigration Law to Stand

PHR Applauds Invalidation of Three Other Sections, Regrets Inaction on Key Provision

PHR today applauded the Supreme Court for striking down three provisions of Arizona’s controversial immigration law, commonly known as SB 1070, but regrets that it let Section 2(B), the “show me your papers” provision, stand.

While the Court unanimously upheld a provision requiring state law enforcement agents to determine the immigration status of any person they stop if they have “reasonable suspicion” to believe that the person is in the country illegally, the Court left the door open for future challenges to that provision. PHR praised the ruling as an important statement that the federal government, not the states, has the constitutional authority to set immigration policy.

Importantly, the Court set the stage for future challenges to Section 2(B) after it goes into effect. Given that forming a “reasonable suspicion” that someone is an undocumented immigrant will inevitably require racial profiling, such challenges are likely. But the Court declined to strike this provision down until it actually goes into effect, at which state courts will have an opportunity to determine the criteria for forming a reasonable suspicion.

While most of today’s ruling is great news for Arizona’s immigrants, leaving Section 2(B) in place will likely have dramatic effects in Arizona. Immigrants, including those who are here legally, stopped for even minor offenses will be detained in large numbers while police officers verify their immigration status.

Since it has not been determined what constitutes “reasonable suspicion,” Arizona police officers will have to offer little justification when stopping and detaining someone.

Although SB 1070 prohibits the use of race, color, or national origin in determining whether someone is undocumented, it is difficult to see what other criteria could give rise to such a “reasonable suspicion.” When future challenges to this provision inevitably make their way to the Supreme Court, PHR calls on the Justices to see that the law is harmful, discriminatory, and ultimately unconstitutional.

The Court considered three provisions of SB 1070 in addition to Section 2(B):

  • Section 3 created a state misdemeanor that criminalized the failure to carry documents proving legal immigration status – effectively authorizing the arrest and imprisonment of undocumented immigrants and other immigrants, such as asylum seekers, who are in the process of obtaining legal immigration status;
  • Section 5 created a state misdemeanor that applied to undocumented immigrants who solicited, applied for, or performed work as employees or independent contractors;
  • Section 6 provided that state law enforcement officers could arrest a person without a warrant if they had probably cause to believe the person “has committed any public offense that makes [him] removable from the United States,” requiring police officers to perform complex and nuanced analysis of federal immigration laws.

Relying on the Naturalization Clause of the Constitution, which gives Congress the power to establish laws regulating immigration, the Court found that three sections of SB 1070 were preempted by federal immigration law. According to this law, states cannot enact laws that in an area that the federal government has reserved for itself.

“The history of the United States,” Justice Kennedy writes in his opinion, “is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here.”

PHR calls on Arizona and other states to remember that the vast majority of undocumented immigrants are hardworking, law-abiding people trying to create a better life for themselves and their families.

Discriminatory laws like SB 1070 are aimed at destroying the fabric of immigrant communities, and hurt immigrants, Arizona, and the entire country. The Court was right to strike down much of the law, and PHR looks forward to the rest of SB 1070 being invalidated in the near future.


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