“Papers, Please:” The Ruling and Aftermath of Immigration Reform SB 1070

Photo by: Melanie Clayton

At the end of last month, The Supreme Court ruled on SB 1070, Arizona’s controversial immigration law. Parts of the law were upheld, but the Court held that others were preempted by federal immigration law and were struck down.  Some have considered the Arizona law to be the broadest and strictest measure in American history to prevent illegal immigration.

 Basic Provisions of SB 1070

At the federal level, current law requires all aliens over the age of 14 to register with the U.S. government upon being present in the country for thirty days or more.  Once past this 30 day mark, aliens are required to have registration documents in their possession at all times.  In addition to the federal law, Arizona’s SB 1070, which was signed into law two years ago, made it a misdemeanor for an alien to be in Arizona without carrying the required documents.  The law also required that state law enforcement officers making a “lawful stop, detention or arrest,” or having “lawful contact” with an individual attempt to determine the individual’s immigration status when there was a reasonable suspicion that the individual was an illegal immigrant.  Finally, the law prohibited state or local officials or agencies from restricting enforcement of federal immigration laws, and impose harsher penalties on those who harbored, hired or transported illegal aliens.

Challenges to the Law

Lawsuits challenging the constitutionality of SB 1070 were originally filed in late April 2010. Nearly two years later, oral arguments on the issue were made before the Supreme Court of the United State.  While Justice Kennedy did acknowledged the failure of Congress and the executive branch in forming a comprehensive immigration strategy, he acknowledged the subordinate role states must play in immigration matters.  “Arizona may have under­standable frustrations with the problems caused by illegal immigration while that process continues,” he wrote, “but the state may not pursue policies that undermine federal law.”

The Court threw out three provisions of the Arizona law on the basis that the provisions were preempted by federal law.  In doing so, the Court noted that a state cannot make it a misdemeanor for immigrants to not carry registration documents; criminalize the act of an illegal immigrant seeking employment; or authorize state officers to arrest someone on the belief that the person has committed an offense that makes him deportable.  However, the controversial “papers, please” portion of the law, which requires police to check the status of people they suspected of being in the country illegally was upheld.  In this regard, Justice Kennedy explained that “[t]he mandatory nature of the status checks does not interfere with the federal immigration scheme.”  “The federal scheme” he explained, “leaves room for a policy requiring state officials to contact ICE (Immigration and Customs Enforcement) as a routine matter.”  However, the opinion does clarify that if an individual is detained under SB 1070 for longer than they would have been to check their legal status, a constitutional problem would be created.

In his dissenting opinion, Justice Scalia contended SB 1070 should be permitted to go into effect in its entirety.  “What I do fear — and what Arizona and the States that support it fear — is that ‘federal policies’ of nonenforcement will leave the States helpless before those evil effects of illegal immigration,” he wrote.  “Arizona bears the brunt of the country’s illegal immigration problem.  Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so.”

Changes Sparked by the Supreme Court Decision

In the wake of the decision, which was handed down nearly three weeks ago, several state and local government entities have reevaluated immigration policies.  In Indiana, Attorney General Greg Zoeller recently conceded that a key portion of the state’s anti-illegal-immigration law is unconstitutional.  When addressed with questions regarding the provisions of Indiana law that would allow local police to detain illegal immigrants in certain instances and prevent immigrants from using foreign issued-ID cards, Zoeller noted that “The Supreme Court made clear that immigration enforcement is a federal government responsibility.”

Similarly, the Washington, D.C. City Council unanimously passed a bill that allows detention only of those who have been previously convicted of a serious crime or felony, and prohibits local police from holding immigration detainees longer than 24 hours beyond the time that they would otherwise be held.  Detainees can only be held longer if the federal government pays the expense, and the bill prohibits city officials from participating in a “generalized search of or inquiry about inmates conducted by federal authorities.”

The Safe Families Ordinance Act of Chicago now protects illegal immigrants from being detained unless they have been convicted of a serious crime, and California’s TRUST Act prevents local police officers from referring a detainee to immigration officials unless the detainee has been convicted of a “serious crime” or felony.

Just this past week, the Ninth Circuit Court of Appeals removed its injunction on the “papers please” provision contained in section 2(B) of SB 1070.  By handing the case back down to U.S. District Judge Susan Bolton, the appellate court accepted the Supreme Court’s decision to allow the provision to face more scrutiny in lower courts.

While the decision has provided some answers and prompted some change in immigration law, it is unlikely that the controversy surrounding immigration laws will die down in the near future.  The ruling has come down in the wake of an increasingly heated presidential race, with immigration issues at the top of most Americans’ concerns.  Even with the number of illegal immigrants coming to the United States have fallen, five states- Alabama, Georgia, Indiana, South Carolina and Utah- have adopted laws similar to SB 1070 and various others are considering the issue.  It is likely that this ruling will be one of numerous court decisions at various levels regarding the role states may play in combating illegal immigration.




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About Leslie Underwood, Former Associate Editor (10 Articles)
Leslie graduated from Campbell Law School in 2013. She is a native of Four Oaks, North Carolina. In 2010, Leslie graduated summa cum laude from North Carolina State University with a Bachelor of Science in Business Management and a minor in Political Science. Leslie participated in numerous moot court competitions, served as a 2012 Graduation Marshal, and worked as a Graduate Assistant in the Campbell Law Career Center. From 2007 to 2010, she was a file clerk at Coats & Bennett, PLLC. In the Summer of 2011, she was an intern at North Carolina Department of the Secretary of State. She was also a summer associate at Smith, Debnam, Narron, Drake, Saintsing & Myers, LLP and externed in the Chambers of the Honorable Linda Stephens at the North Carolina Court of Appeals.
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