SCOTUS Decision Will Help States Chart Course on Immigration Enforcement

By Jessica M. Vaughan on June 26, 2012
Daily Digest

, June 26, 2012

The Supreme Court decision on Arizona’s most recent immigration law is a welcome endorsement of what is already a standard best practice among many local law enforcement agencies around the country; namely, checking the immigration status of offenders or suspects if they can’t promptly show they are present in the United States legally. The Court ruled unanimously that requiring local officers to take this step is not necessarily “mandated racial profiling” nor a civil rights violation, as critics had claimed, thus upholding a key part of the state’s effort to restore the rule of law and deter illegal settlement in the face of federal neglect.

Arizona did not get a green light from the court, however, to prosecute minor immigration offenses as state offenses, which would have enabled them to step into the vacuum of enforcement created by the Obama administration’s minimalist enforcement policies.

Eleven of the 14 sections of SB 1070 are left standing — clearly a win for Arizona. This latest ruling, together with last year’s blessing of Arizona’s requirement for every employer to use E-Verify to check the status of newly hired workers, should encourage other states to act. Legislators now have the guidance they’ve been waiting for to write bills that will be effective in this arena and survive legal challenges from anti-enforcement groups.

The part of the law that most observers had focused on, melodramatically dubbed by journalists as the “show me your papers” provision, is the part that the court endorsed. Found in Section 2(B), it requires Arizona law enforcement officers to make a reasonable attempt, “when practicable,” to determine a person’s immigration status during a “lawful stop, detention, or arrest” if there is a reasonable suspicion “that the person is an alien and is unlawfully present in the United States.” Officers can do this by asking the person for identification and evidence of status, or by asking the federal government if it has a record of this person. Under federal law, the Department of Homeland Security is obliged to answer such requests.

Governor Jan Brewer has called this the “heart” of the law. It is important for several reasons. Most significantly, it sets a state-wide standard for how local police and sheriffs will deal with non-citizens they encounter. It prevents local politicians from directing police to look the other way at obvious immigration violations and establishing their jurisdictions as sanctuaries for criminal aliens.

Arizona has enormous crime problems and violence that relate to illegal immigration, and inadequate border control, including alien smuggling, drug trafficking, kidnappings, vehicle theft, and money laundering. As the Court noted (based on a study I did with a colleague), a disproportionate number of felonies in Maricopa County, the population center of Arizona, are committed by illegal aliens. Immigration and Customs Enforcement (ICE) estimates that this year in Arizona, nearly 27,000 aliens will be arrested by local officers for other crimes. ICE agents do not know who or where the illegal alien offenders are unless they are notified by local officers. Now, with local officers checking on status, criminal aliens are much less likely to slip through the cracks and much more likely to be sent home. This will prevent future crimes, spare future victims, and save taxpayer money.

Immigration enforcement critics have insisted that the law “mandates racial profiling.” This is nonsense. Aside from the fact that the law explicitly forbids racial profiling, it is important to remember that the law permits the status checks only in the context of a legitimate law enforcement encounter — officers may not detain people just to ask if they are here legally. They must have detained them for another infraction, and must have “reasonable suspicion” of illegal status before they can make the immigration inquiry, which is even more stringent than what federal law already allows. Only those illegal aliens caught breaking other laws have something to fear from this measure.

But wait, say the critics, obviously officers will be able to trump up charges on anyone they suspect of being here illegally, just so they can harass them and try to have them deported. Theoretically that is a possibility, and if that happened, it would be wrong, and should be dealt with sternly. But it is profoundly insulting to Arizona officers to assume that this necessarily would be rampant. The justices indicated that the state deserves the benefit of the doubt and should be allowed to implement the law.

At the end of the day, this ruling is important to both federal and local law enforcement agencies, and to the citizens and legal immigrants they protect. It affirms that police and sheriffs may, and may be required, to ask offenders about their immigration status, and that immigration status is not something that anyone is entitled to keep secret, like your religion or your favorite color.

This should put a stop to the wave of predatory lawsuits that have been launched by advocates (with official encouragement from the Departments of Justice and Homeland Security) for illegal aliens against police and sheriffs who dare to ask about immigration status, but unfortunately it won’t. Not satisfied that even criminal illegal aliens should be identified and deported, or that local officers should be allowed to help federal immigration agencies do their job, we can expect to see legions of civil rights attorneys and activists descend on Arizona, desperate to prove that racial profiling is occurring. They will be manning hot lines, hosting public forums, soliciting stories of abuse, and combing through arrest reports in an effort to prove that checking immigration status is synonymous with racial profiling.

This activity may embolden some illegal aliens to stick it out, but most of them will get the message that their options are more limited now, and their situation more tenuous. Thanks to Arizona’s court-tested E-Verify law, it is now much harder for them to find a job. Under a state law passed years ago, illegal aliens cannot collect many social services or obtain a driver’s license. Now many more illegal aliens will not want to risk arrest and removal by driving without a license, breaking traffic laws, or using false documents.

Arizonans will not have to wait for federal agents to find and remove them, because the illegal immigrants will continue filtering home on their own. After the E-Verify law passed in 2007, the size of the illegal alien population in Arizona declined by 17 percent, and this seems to have continued ever since. Now that the Supreme Court has provided a road map for permissible state immigration legislation, others are sure to try to replicate this successful formula. In the absence of Congressional action, further state movement along these lines is the most promising antidote to the Obama administration’s minimalist enforcement policies.