SCOTUS Decision Will Help States Chart Course on Immigration Enforcement

The Supreme Court decision on Arizona’s most recent immigration law is a welcome endorsement of what is already a standard best practice among many local law enforcement agencies around the country; namely, checking the immigration status of offenders or suspects if they can’t promptly show they are present in the United States legally. The Court ruled unanimously that requiring local officers to take this step is not necessarily “mandated racial profiling” nor a civil rights violation, as critics had claimed, thus upholding a key part of the state’s effort to restore the rule of law and deter illegal settlement in the face of federal neglect.

Arizona did not get a green light from the court, however, to prosecute minor immigration offenses as state offenses, which would have enabled them to step into the vacuum of enforcement created by the Obama administration’s minimalist enforcement policies.

Eleven of the 14 sections of SB 1070 are left standing -- clearly a win for Arizona. This latest ruling, together with last year’s blessing of Arizona’s requirement for every employer to use E-Verify to check the status of newly hired workers, should encourage other states to act. Legislators now have the guidance they’ve been waiting for to write bills that will be effective in this arena and survive legal challenges from anti-enforcement groups.

The part of the law that most observers had focused on, melodramatically dubbed by journalists as the “show me your papers” provision, is the part that the court endorsed.   Found in Section 2(B), it requires Arizona law enforcement officers to make a reasonable attempt, “when practicable,” to determine a person's immigration status during a "lawful stop, detention, or arrest" if there is a reasonable suspicion "that the person is an alien and is unlawfully present in the United States."  Officers can do this by asking the person for identification and evidence of status, or by asking the federal government if it has a record of this person. Under federal law, the Department of Homeland Security is obliged to answer such requests.

Governor Jan Brewer has called this the “heart” of the law.  It is important for several reasons.  Most significantly, it sets a state-wide standard for how local police and sheriffs will deal with non-citizens they encounter.  It prevents local politicians from directing police to look the other way at obvious immigration violations and establishing their jurisdictions as sanctuaries for criminal aliens.

Arizona has enormous crime problems and violence that relate to illegal immigration, and inadequate border control, including alien smuggling, drug trafficking, kidnappings, vehicle theft, and money laundering.  As the Court noted (based on a study I did with a colleague),  a disproportionate number of felonies in Maricopa County, the population center of Arizona, are committed by illegal aliens. Immigration and Customs Enforcement (ICE) estimates that this year in Arizona, nearly 27,000 aliens will be arrested by local officers for other crimes. ICE agents do not know who or where the illegal alien offenders are unless they are notified by local officers.  Now, with local officers checking on status, criminal aliens are much less likely to slip through the cracks and much more likely to be sent home. This will prevent future crimes, spare future victims, and save taxpayer money.

Immigration enforcement critics have insisted that the law “mandates racial profiling.”  This is nonsense.  Aside from the fact that the law explicitly forbids racial profiling, it is important to remember that the law permits the status checks only in the context of a legitimate law enforcement encounter -- officers may not detain people just to ask if they are here legally. They must have detained them for another infraction, and must have “reasonable suspicion” of illegal status before they can make the immigration inquiry, which is even more stringent than what federal law already allows. Only those illegal aliens caught breaking other laws have something to fear from this measure.