The Consequences of the Supreme Court
Approving Arizona Immigration Law
By Linda Greenhouse, NYT) I found last
week’s Supreme Court argument in the
Arizona immigration case utterly
depressing, and I’ve spent the
intervening week puzzling over my
reaction. It’s not simply that the
federal government seems poised to lose:
unlike the appeals court, the justices
appear likely to find the heart of
Arizona’s mean-spirited “attrition
through enforcement” statute, S.B. 1070,
permissible under federal law.
Poring over the argument transcript and
the briefs, what finally came through as
most deeply troubling was this: the
failure of any participant in the
argument, justice or advocate for either
side, to affirm the simple humanity of
Arizona’s several hundred thousand
undocumented residents.
Both facts and logic tell us that this
is a varied population. Different
reasons, different routes and different
times brought these individuals to
Arizona. Half the adults among them hold
jobs. Many are parents of American-born
citizens of the United States. An untold
number, while not possessing the right
papers, are also not now deportable
under our byzantine immigration laws.
But whoever they are and whatever their
stories, all are now likely to become
what Arizona intended them to be when it
enacted the law two years ago: hunted.
Under the portions of S.B. 1070 that the
lower federal courts have blocked, it is
a crime, subject to imprisonment and a
fine, for an “unauthorized alien” to
seek work, a “criminalization of work”
that has no counterpart in federal law.
Police officers must determine the
immigration status of anyone they stop
if they have “reasonable suspicion” that
the person is “unlawfully present in the
United States.” A violation of the
federal alien-registration statute is
deemed a state criminal offense. Arizona
police may arrest, without a warrant,
anyone whom they have probable cause to
believe has committed “any public
offense that makes the person removable
from the United States.”
As the argument proceeded, it was all
trees and no forest, the justices toying
with first one section and then another.
How long does it take to check the
immigration status of someone whom the
police have detained? “Two hours?” asked
one justice. “Two days?” another
wondered. Only 10 minutes or maybe 11,
Paul D. Clement, representing Arizona,
answered reassuringly. O.K., not so bad,
on to the next section. I was reminded
of the blind men and the elephant in the
old fable. No one saw the statute whole.
The observation by Solicitor General
Donald B. Verrilli Jr. that federal
immigration law is “exceedingly delicate
and complex,” replete with foreign
policy implications and not amenable to
blunderbuss treatment by each of 50
states, was met with skepticism, as was
his insistence that the federal
government needs to be able to set its
own enforcement priorities. “So you’re
saying the government has a legitimate
interest in not enforcing its laws?”
Justice Anthony M. Kennedy asked.
Justice Antonin Scalia took a “why even
bother” approach, asking the solicitor
general: “Are you objecting to harassing
the people who have no business being
here?”
Many casual followers of this case,
State of Arizona v. United States, no
doubt assume it has something to do with
the rights of undocumented immigrants.
As the argument made abundantly clear,
it doesn’t. The question, rather, is
which of two sovereigns, the United
States or the state of Arizona, has the
right to make the immigrants’ lives
difficult. Federal preemption is a
doctrine about structure, not rights.
Preemption sets a federally designated
floor below which the states aren’t
permitted to sink. The problem is that
when it comes to immigration, the floor
is getting lower all the time.
The most telling moment came early in
Mr. Clement’s description of the Arizona
law, when he said: “The federal
government doesn’t like this statute,
but they are very proud of their Secure
Communities program.” Secure
Communities, of course, is the program
under which the federal government
commandeers local law enforcement
officials, including those with their
own contrary enforcement priorities,
into the process of identifying
deportable aliens. It requires local
police and prison officials to provide
to the F.B.I. the fingerprints of anyone
arrested, to enable federal immigration
authorities to then check the prints
against immigration databases and, in
the case of a match, to take custody of
the person upon release.
The program began late in the Bush
administration. Despite mounting
objections from state and local
officials, the Obama administration has
pursued Secure Communities vigorously as
a tool in meeting its goal of 400,000
deportations a year. Immigrants with no
criminal record have been deported after
minor traffic violations. While the
administration has said repeatedly that
its priority is deporting those
convicted of serious crimes, the
deportation culture is so ingrained and
the undocumented are so demonized among
those who enforce the law that
resistance by officers of the
Immigration and Customs Enforcement
agency has become a serious obstacle to
conforming the agency’s performance to
the president’s stated priorities.
So Mr. Clement, the Bush
administration’s last solicitor general,
was certainly on to something when he
suggested that Arizona was simply
following Washington’s lead. Indeed, he
and his successor, Mr. Verrilli, seemed
engaged in a verbal arms race. The
federal government’s brief offered a
startling description of what the
government was doing on the
Arizona-Mexico border in the spring of
2010, when the Arizona Legislature
passed S.B. 1070: 4,000 Border Patrol
agents stationed there, a 40 percent
increase since 2005; 40 aircraft on
patrol; 305.7 miles of border fence
completed.
The description was aimed at showing
that the Feds were on the case and that
Arizona’s law was simply superfluous.
Perhaps so, but I read this account as
the chilling self-description of a
powerful nation obsessed with imaginary
enemies. “Before I built a wall I’d ask
to know/ What I was walling in or
walling out,” Robert Frost wrote. We
have walled ourselves in, whether by
Arizona’s hand or Washington’s or both.
The Supreme Court will tell us if the
difference matters. I had thought it
did, but by the end of last week’s
argument, I was no longer sure.
