Following final arguments this month, the Supreme Court is expected to release its decision regarding the constitutionality of Arizona’s immigration law; the ruling will come in late June, at the height of the presidential campaign. Under Arizona’s immigration law, law enforcement personnel, when detaining individuals for reasons other than immigration status, must check residency status if they have “reasonable suspicion” that the detained individual is an undocumented immigrant. Detaining an individual constitutes an arrest whether or not there is sufficient evidence to support the commission of a crime. Officers are not permitted to detain an individual based solely on appearance, which has raised concern when establishing “reasonable suspicion,” as it relates to racial profiling. The law also assigns federal immigration responsibilities to state and local law enforcement personnel.
Another provision the court will decide in June is the state’s legislative authority to assume federal government’s authority for the administration and enforcement of immigration laws. Solicitor General Donald Verrilli Jr. wrote, “It is the national government that has ultimate responsibility to regulate the treatment of aliens while on American soil, because it is the nation as a whole, not any single state, that must respond to the international consequence of such treatment.” Verrilli argued that Arizona is attempting to hijack federal enforcement responsibilities.
However, Arizona’s attorney Paul Clement wrote in his brief, “Arizona and its 370-mile border are a conduit for rampant illegal entries and cross-border smuggling. The public safety and economic strains that this places on Arizona and its residents have created an emergency situation…” Clement describes Arizona’s immigration laws as a collaboration between state and federal government.
The Supreme Court’s decision is of great importance and will have a significant impact on South Carolina, Alabama, Florida and 13 other states that have aligned themselves with Arizona; but the court’s decision has a much greater implication that reaches far beyond Arizona’s borders and into the presidential campaign.
At a recent fundraiser in Florida, Presidential Candidate Mitt Romney said, “We have to get Hispanic voters to vote for our party,” recognizing that a huge percentage of Hispanic voters are supporting President Obama. Failure to do so “spells doom for us,” said Romney as he suggested a “Republican DREAM Act” to woo Hispanics. A court’s decision to uphold Arizona’s immigration law will make Romney’s efforts extremely difficult when considering Republican leadership’s opposition to the DREAM Act in the recent past.
Last year the Supreme Court voted 5-3, with one recusal, to pass a separate Arizona provision allowing for the suspension and revocation of an employer’s business license for knowingly employing an undocumented immigrant. This has caused some experts to believe the Supreme Court may rule in Arizona’s favor. However, the court simply ruled that the states have authority over a state business and employer, not an undocumented immigrant; their ruling in this instance silently respects the lines of authority, a matter to be decided in the Arizona case.
During Justice Scalia’s response to the government’s oral arguments, he said, “Perhaps Congress never expected that the states would have to resort to such massive measures, and they probably wouldn’t have if the law had been uniformly enforced and vigorously enforced, right?” However political his statement, it fails to acknowledge that more undocumented immigrants have been deported under the current administration than during either of the Bush Administrations.
Another consideration affecting the Supreme Court’s decision is Justice Elena Kagan’s recusal of herself—the result of a conflict created by her former position as US Solicitor General. This gives the conservative court a 5-3 advantage in the Arizona case. If the vote returns a 4-4 tie, the 9th Circuit Court of Appeals decision, striking down Arizona’s law, will be upheld. This might create a political opportunity for Romney, since a decision upholding Arizona’s immigration law would solidify the Hispanic vote in Obama’s favor and greatly disadvantage Romney’s hopes of “wooing” the Hispanic vote with a Republican DREAM Act.
The court is likely to confirm Arizona’s right to question and reasonably detain an individual for the purpose of confirming residency and reporting undocumented immigrants to immigration authorities. However, given the clearly defined jurisdictional lines of authority, the court will have difficulty not confirming the federal government’s authority over immigration matters in the absence of legislative authority.
Immigration issues are complex, political and controversial. Unfortunately, until comprehensive immigration legislation is approved, the Arizona law is only another saga in the ongoing immigration wars that have polarized our leaders and its citizens, resulting in a bevy of legislation intended to circumvent existing laws. Immigration will not be fixed in the courts, and the laws that now exist have done nothing to introduce sanity to the issues surrounding immigration.
But this conversation cannot be had until a moratorium calms the fear, hate and derisive, condemning rhetoric that undermine the sensibility required to bring this great nation together in search of solutions and not violence. Undocumented immigrants are not illegal aliens or dirty, filthy criminals looking for a hand out; they are hard working people looking for opportunity. There is only shame in our failure to recognize college graduates, military personnel and American born children as citizens.
Last month, hate and fear killed two human beings in the desert near the town of Eloy in Southern Arizona. An unknown number of men wearing camouflage clothing and carrying rifles carried out this murder. Is this the way of progress? Arizona has passed legislation creating “Arizona’s Specials Missions Unit,” a 300 volunteer armed militia to patrol the border. This shoot-first vigilante attitude violates every decent human concept known to mankind. Arizona’s law and the Supreme Court’s decision will decide nothing and do nothing but bring more violence and division in a matter that requires humanity and understanding. When will the condemnation and killing stop?
