The Supreme Court ruling that struck down much of the Arizona immigration law this morning is being widely trumpted as a victory for the Obama administration. But in truth, from the point of view of immigration advocates, it was only a partial victory at best. It still remains to be seen whether the worst feature of the Arizona law will spread to other states and, in the process, resist future court challenges and survive over the long term as a legally-enshrined law enforcement tactic.
The decision, as described by the Post:
The court ruled that Arizona cannot make it a misdemeanor for immigrants to fail to carry identification that says whether they are in the United States legally; cannot make it a crime for undocumented immigrations to apply for a job; and cannot arrest someone based solely on the suspicion that the person is in this country illegally.
However, the court let stand the part of the law that requires police to check the immigration status of anyone they detain, if there is “reasonable suspicion” that the person is unlawfully in the United States. Even there, though, the justices said the provision could be subject to additional legal challenges. The court said it was “improper” for the federal government to block the provision before state courts have a chance to interpret it and without determining whether it conflicts with federal immigration law in practice.
The court’s decision to strike down the first three provisions is welcome news to immigration advocates, and suggests the Obama administration was right to challenge the law. But advocates expected that those provisions wouldn’t survive the decision. The problem is that the court upheld the aspect of the law that is most worrisome — the part that requires police to check the status of a person if there is “reasonable suspicion” that the person is here illegally.
“The real make or break was the show-me-your-papers provision,” Frank Sharry of America’s Voice tells me. “Basically they upheld it.”
There are several problems here. The first is that this could lead to racial profiling, says Marshall Fitz of the Center for American Progress. “It’s not a sweeping victory for the other side, but the provision we most worried about was the one giving cops the ability to stop people and ask for their papers,” Fitz says. “We think this will lead inevitably to racial profiling, based on the way they sound and the way they look.”
Second: The fact that the High Court has suggested that there are ways for states to implement and/or interpret this law could encourage other states to try their own versions of it, rather than dissuade them from doing so. Efforts to emulate the Arizona law are already underway in a handful of states.
“There are lots of Joe Arpaios out there,” Fitz says, in a reference to the Arizona sheriff. “States will say, `Look, they upheld this.’”
No question, the ruling does contain some good news, even when it comes to the most controversial provision. The ruling is a warning to states that the High Court has not given it a full green light, and it essentially keeps other court challenges to that part of the Arizona law very much alive, meaning it could be struck down on other Constitutional grounds later. But ultimately, the larger battle over the provision has not been settled, and will continue. Perhaps it will fail in court in the long run. But the alternative is that this law enforcement tactic ultimately could become a permanent feature of the American legal landscape — with untold consequences when it comes to possible racial profiling and other potential abuses.