The U.S. Supreme Court has granted certiorari to undeniably significant cases this term, a fact not lost on the Court itself. Justice Ginsburg recently stated that “some have called it the term of the century.” One of the most eagerly awaited decisions, on the controversial Arizona v. United States, was released this past Monday. The ruling will undoubtedly impact federal and state immigration enforcement policy for years to come, but also has great potential to severely hamper the effectiveness of local policing efforts.
The court made its ruling on a very specific issue: whether each of the four challenged sections within Arizona's immigration enforcement law, SB 1070, preempted existing federal law. The Court struck down three of the four provisions (§3, 5(C), and 6) for this reason, but let provision §2(B) stand if it only required “state law to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released.” The Court did, however, include clear warnings for Arizona, and presumably other States interested in creating similar laws. The court held that state enforcement must not delay the release of detainees beyond immigration status verification, hold detainees in custody for status violations without federal immigration supervision, or create “other consequences that are adverse to federal law and its objectives.” The court warned that evidence of any of these actions would “raise constitutional concerns.”
The court's decision has has not fragmented U.S. Immigration law, as some had feared, but it has certainly complicated its enforcement. Each state that creates its own immigration enforcement law will be exposed to a mass of legal challenges filed by both the law's proponents and opponents.
Twenty-four states have already attempted to model an enforcement law after Arizona's SB 1070 (Georgia's HB87 is the only to have been signed into law). The primary issue with such state enforcement laws is that, to be effective, each requires an SB 1070 style “anti-sanctuary” provision, which gives standing to any party to sue an officer or department for not enforcing the state's immigration enforcement laws. These laws would be rendered ineffective without such a provision. Meanwhile, it is clear that opponents will file racial profiling lawsuits against police departments, or have suits filed on their behalf such as the U.S. Department of Justice's case against Arizona’s Sheriff Arpaio and the Maricopa County Sheriff’s Office, or the ACLU's challenge of Georgia's HB87.
As a result, police officers could be subject to litigation on any given immigration status check, but not if they failed to investigate a robbery. This may be why Attorney General Eric Holder indicated in his statement on the ruling, “We will also work to ensure that the verification provision does not divert police officers away from traditional law enforcement efforts in order to enforce federal immigration law, potentially impairing local policing efforts.”