It is true, as other critics of SB1070 will explain, that the Immigration and Nationality Act assigns responsibility for "administration and enforcement" to the federal executive branch, and that under the INA states have only the power to "cooperate with the Attorney General" in immigration enforcement.
It is also true that the Supreme Court has recognized that "[p]olicies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government. ... that the formulation of these policies is entrusted exclusively to Congress has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our government." These are sufficient reasons for the Supreme Court to hold that Arizona cannot pass its own immigration laws, and cannot override federal decisions about enforcement of federal law.
But there is another reason the Court should strike down SB1070: America's future is Hispanic. Thanks to the 1965 Immigration Act, whatever Arizona and the other states do, and whatever the Court does, the United States will be increasingly racially diverse. Given our history and proximity to Mexico, many of the immigrants will be from Mexico.
Some supporters of SB1070 claim to object to unauthorized migrants, not Mexicans per se. But there are no major demographic differences between undocumented and documented Hispanics and U.S. citizens of Hispanic background; they live in the same communities, perform the same jobs, and are members of the very same families. Whatever makes the undocumented population so dangerous and undesirable applies equally to the documented and to U.S. citizens. (Or, if it is lack of legal status alone that makes them objectionable, that could be instantly remedied with the stroke of a pen).
Moreover, actions speak louder than words: Historically, Arizona had the full panoply of Jim Crow race laws and anti-immigrant legislation, and more recently opposed the Martin Luther King Holiday, championed English-Only laws, and recently passed laws aimed at ending Mexican American Studies programs in public schools. There is little in Arizona's legislative record to comfort those who suspect SB1070 is racially motivated.
In my travels over the last 18 months to conferences about SB1070, at two separate events, I heard two different members of the clergy, a retired Roman Catholic archbishop in Minneapolis and a Native American spiritual leader in Flagstaff, offer the basically the same advice to the audience and the nation: "Let's not do harm to the community that we will not be able to fix." The United States can have a future where its largest ethnic minority group remembers that it was protected by the Supreme Court, or, instead, that it was left to the mercy of laws motivated by fear and passion. At their best, Americans hope to be one People, and laws like SB1070 represent a long step away from that ideal.
In sum, the Court should not only protect individuals from harsh treatment, it should also save Arizona from itself. Congress legislated to this effect 1870, when, in response to California's persecution of Chinese immigrants, it passed what is now 42 U.S.C. § 1981(a), instructing states that they must treat "all persons within the jurisdiction of the United States," with respect to most rights other than voting the same as "white citizens."
Striking down Arizona's law will put the onus of solving this problem where the Constitution and common sense say it belongs: on Congress. The solution Congress comes up with will not necessarily be congenial to the undocumented population; many or all may be required to leave the United States. But whatever result is reached will differ from SB1070, because it will be based on a full discussion, aided by the best expert information, informed by views from all over the country, and its execution will be fortified with the foreign affairs power; the State Department, for example, will find it much easier to get cooperation with overseas law enforcement agencies than a local sheriff. The Court should think of the future in terms of Brown v. Board of Education, not Dred Scott.