On Monday, our United States Supreme Court promised plenty of work for our brothers and sisters on the nation’s border states practicing governmental liability law. In Arizona v. United States, 567 U.S. ___ (2012), among other rulings, the 5-3 (9-0 on Section 2(B)) Court upheld Arizona’s controversial Show Me Your Papers provision, which requires local law enforcement to check the immigration status of people they stop for another reason.
Rejecting the United States’ position that federal law pre-empts the Arizona statute in this effect, the Majority broadly reasoned that this particular law complimented, rather than stood as an encroachment, into the federal immigration power. The Court also reasoned that as a facial challenge to a pre-effect law, it had before it neither a factual record, nor the “benefit of a definitive interpretation from the state courts” upon which to address any Fourth Amendment or other preemption concerns.
The law requires state officers to make a “reasonable attempt…to determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Pretermitting the obvious – that every stop will take longer once reasonable suspicion kicks in, the Court also chose not to deal with 2(B)’s vagueness, nor its obvious invitation to practice racial profiling. This comes as no surprise, given the Court’s getting the Solicitor General at Oral Argument to concede that, at least at this stage, the case does not involve a racial profiling element.
The Court has turned loose to the lawyers and the courts the responsibility to create this definitive interpretation of how this law impacts the Fourth Amendment and other rights of United States citizens. Arizona will see plenty of litigation over the certain-to-be future interplay at the in section of 2(B) and the Fourth Amendment.
Somewhat lost in the shuffle, is the Obama Administration’s having cancelled some agreements allowing Arizona Police Departments to enforce federal immigration laws. The Administration has set up a hot-line and email address for the public to report civil rights concerns. It is unclear what impact this will have on the overall landscape. It seems unlikely the Feds would pull such agreements nation-wide.