The Practical Effect of the Arizona v. United States Decision

By Priscilla E. Jimenez
Special to the Legal

The Supreme Court’s recent decision on Arizona’s immigration law, SB 1070, otherwise known as the “Support Our Law Enforcement and Safe Neighborhoods Act,” has done little to quell the attention and conversation that has been prevalent over the past two years since the law was passed. Critics of the legislation say it encourages racial profiling, while supporters say it is intended to reduce the number of illegal aliens in the state.

A divided Supreme Court, in a majority opinion written by Justice Anthony M. Kennedy, determined that three out of four provisions of the law were unconstitutional and pre-empted by federal law – and, in accordance with this holding, upheld an injunction against these three provisions of the law. However, with respect to a fourth challenge against Section 2(b) of the law, a unanimous court upheld what most people have viewed to be the most contentious provision of the law: the “show me your papers” provision. Although the court has upheld this provision by determining that an injunction based on pre-emption was premature, they left the door open to future challenges once this section has been implemented. According to the court, if the practical effect of enforcement conflicts with federal immigration law and its goals, then this fourth provision may be struck down as well.

This upheld provision requires police to detain an individual when they make an arrest for any suspected violation of any law – if they believe that person is an undocumented immigrant – so they can check the legality of his or her presence in this country. This is true regardless of the reason for the arrest – whether it be for a parking ticket or an assault. One must wonder how the Arizona government is going to successfully implement this portion of the law in such a way that abstains from violating the civil rights of the individual in question. According to the court, if the law is applied in a way that violates civil rights, the law will be enjoined by the lower court, and the aggrieved individuals will be able to sue for damages under federal law. Stay tuned, because implementation of Section 2(b) promises to be a challenge for both Arizona law enforcement and, obviously, Hispanic residents of the state.

This issue has become a hot topic in the political arena as well. President Obama stands firm in his stance that Section 2(b) of the Arizona law is worrisome. He said, “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 … we must ensure that Arizona law enforcement officials do not enforce this law in a manner that undermines the civil rights of Americans.” On the other end of the spectrum, presumptive Republican nominee Mitt Romney has expressed his disappointment with the Supreme Court’s ruling and has stated he would have “preferred to see the Supreme Court give more latitude to the states, not less” and has repeatedly declared he would drop lawsuits against Arizona and other states with similar immigration legislation on “Day One” of his presidency.

Both candidates have called for Congress to take action. The decision by the court was largely based on its interpretation of the federal immigration law, but if Congress clarifies its intent with regard to pre-emption, the situation could drastically change. The existing Congress may not take action, but the balance of power in a new Congress taking office in January 2013 would likely impact its response.

Keeping abreast of the stance of the presidential and congressional candidates on these issues is imperative, as their promises to either enforce or attack such legislation will undoubtedly have a significant impact on Latinos and the economy. The short-term effect of the Arizona decision is pretty clear: Arizona is going to attempt the near impossible by trying to implement Section 2(b) in a way that protects individuals’ rights. The long-term effect of the decision, however, is unknown, as the November elections can result in a dramatic shift in congressional or presidential action with regard to immigration.

Priscilla E. Jimenez is an associate at the Locks Law Firm in Philadelphia and works on personal injury, pharmaceutical litigation, products liability and medical negligence and malpractice cases. She can be reached at 215-893-3420 or [email protected].

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