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Anti-Immigrant Lobby Wrong to Celebrate SB 1070 Ruling: Supreme Court Issues Death Sentence for “Reasonable Suspicion” Mandate

by Eric Byler

Here is my initial reading of the Supreme Court’s decision in favor of the U.S. Department of Justice and the Obama administration with regard to Arizona’s historic immigration law, SB 1070:

  • I was wrong. I predicted (below) that the Supreme Court would go beyond the scope of the case before them, and strike down Arizona’s SB 1070 in total based on the Equal Protection Clause of the 14th Amendment.  Instead, they ruled as the Obama administration argued that the law violates the Supremacy Clause of the Constitution, and thus clarified that the United States is one country, not 50, and that only the federal government can make foreign policy, immigration policy, trade policy, etc.
  • I will be proven RIGHT in time. The Obama administration decided not to challenge the most controversial part of SB 1070, the requirement that law enforcement officials check immigration status based on a subjective standard of suspicion.  I predicted based on recent case history that the Court would go beyond the case as argued and make a more sweeping decision (as it has to expand the power of multi-national corporations to influence our elections and limit the power of trade unions to do so).  Instead, the Court seemed to rule with 14th Amendment blinders on, saying that the “Reasonable Suspicion” does not violate the Supremacy Clause but implying strongly that it does violate Equal Protection.
  • Kennedy’s majority opinion essentially delays the civil rights ruling for another case, presumably one that shows that a person has been detained under SB 1070  just to check their immigration status, which the Court writes would be unconstitutional.  Kennedy writes: “This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.”When a challenge based on Equal Protection reaches the Supreme Court, it seems evident that a 6-3 decision wills strike down this provision as well.  (Justices Roberts, Ginsburg, Breyer and Sotomayor agreed with Justice Kennedy’s majority opinion. Scalia,  Thomas and Alito filed opinions partly agreeing and partly disagreeing).
  • The upshot: The “Reasonable Suspicion” mandate is the part of the Arizona immigration law that is the most controversial, and, it is the only part that is still in place after today’s ruling.  Law enforcement in Arizona cannot begin  to apply the law differently to those who appear to be immigrants (as Alabama is already doing), until after the injunction that led to today’s ruling is lifted by US District Court Judge Susan Bolton.  Judge Bolton is currently considering challenges to the law based on Equal Protection.  These “Reasonable Suspicion” laws claim to be Constitutional because the immigration status checks are mandated after a legal stop — which is to admit that it would be illegal to stop someone just because they look like an immigrant, but claim that is okay to require law enforcement to apply a suspicion standard once a person has been stopped for rolling through a stop sign or committing a crime.  This is the theory of the law, but if in practice it deprives citizens and legal residents of Equal Protection under the law (for instance, people with darker skin are pulled over more often for minor traffic violations and/or held for a longer period of time once they are) the “Reasonable Suspicion” mandate will be struck down when a case is brought that proves as much.


Why the Supreme Court Will Strike Down Arizona’s Immigration Law

by Eric Byler

If I had to put money on it, I would bet that the United States Supreme Court will strike down Arizona’s immigration law, and with it, Alabama’s law, and every other copycat stemming from the failed “Probable Cause Mandate,” repealed after only 8 weeks by a Republican-dominated, Virginia county government in April 2008.

In Virginia, as you can see here (trailer) or here (full length film), the mandate was repealed due to its negative impact on the fiscal solvency of the county government, on the local economy, and on public safety. Also, the Bush Administration had forewarned the county government that they would be filing a racial profiling law suit, which would have been expensive to defend. Now the Obama administration is tasked with protecting the rights of American citizens and residents.  My prediction would be a no-brainer if not for the partisan framework through which this case, and others currently before the Supreme Court, is being viewed.

The Constitutional imperative for striking down Arizona’s ALEC-sponsored law is plain as day.  The Equal Protection Clause in the 14th Amendment to the US Constitution requires each state to provide equal protection under the law to all people within its jurisdiction.  In April of 2010, elected leaders in Arizona passed SB 1070, which, if upheld, would require law enforcement officials to violate the 14th Amendment. This unfunded government mandate, already in effect in Alabama, requires officers and deputies to apply a subjective standard called “Reasonable Suspicion” to every person they encounter, even on a routine traffic stop.  If a person appears to be a natural born citizen, officers are trusted with the discretion to apply the law based on “risk to the community,” and that risk is assessed based on conduct; not skin color or language proficiency.  But, if a person appears to be an immigrant, public safety becomes a secondary priority, and, the officer is required to make an arrest, regardless of the time and resources it requires, and, regardless of that person’s Constitutional right to equal protection under the law.

Now, it is true, and I have written about it before, that the US Justice Department miscalculated in a deeply disappointing way by focusing on the Supremacy Clause of the Constitution (individual states have no jurisdiction on foreign policy, trade, and immigration) and ducking what they must have feared would be a more racially charged oral argument centered around Equal Protection.  But that does not preclude the Court from ruling on it anyway.  The Supreme Court has used a narrow case to rule on a broader issue in the past.  In fact, in the decision by which history will almost certainly judge the majority of the current bench, they did exactly that.

Citizens United v. FEC was, until its ruling on Jan. 21, 2010, a very narrow question as to whether or not a feature-length political ad could be aired right before an election.  Five members of the Court decided to rule more broadly, striking down a hundred years of campaign finance law and ushering in the “Dark Money Era” of US history, marked by unlimited and anonymous campaign spending by wealthy individuals, multinational corporations, and domestic advocacy groups such as trade unions.

Perhaps because of this decision, the majority of Americans now view the Supreme Court as a political body that reshapes our Constitution to fit ideological and even partisan agendas.  I prefer to believe that Citizens United was an honest mistake, and, that the five conservatives on the Court are more thoughtful and complex than they appear based on their rulings.

But even if you believe that the Court puts Republican party interests above Constitutional scholarship, consider the fact that the establishment wing of the Republican Party (to which five of the Justices are said to belong) has no love lost for the collusion of interests that support the “Reasonable Suspicion” mandate:

(1) Outliers within the Republican party who are either extreme on social issues, or believe they can steamroll through primaries by pandering to extremists on social issues

(2) The private prison industry, which stands to profit immensely by extracting resources from state governments that would otherwise go to public safety, hospitals, education, and transportation

(3) The anti-immigrant lobby in Washington, which has been working for three decades to reverse the “browning of America” but never gained any traction until they exploited the attacks of September 11th, 2001 to conflate immigration and national security

Equal Justice Under LawFuthermore, if you believe the conservatives on the Court spend their time thinking of ways to stick it to President Obama, consider this:  As Mitt Romney woos Sen. Marco Rubio as his running mate, and as the Republican party tries to decide whether to embrace President Obama’s embrace of the Rubio approach to the DREAM Act, it’s clear that mainstream Republicans are troubled by the near-term and long-term political ramifications of to anti-immigrant electioneering during each of the past two GOP presidential primaries (most notably, voiced by Romney) and in states like Arizona.  The best way for the conservatives on the Court to improve Republican electoral prospects would be to upstage President Obama’s appeal to America’s immigrant communities by striking down the Arizona law, based on the very argument that the Obama administration was too timid to make — the fundamental right of all Americans, including Latinos and others who appear to be immigrants, to Equal Justice Under Law.

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