On Wednesday morning, hoards of protesters and supporters of Arizona’s S.B. 1070 rallied in front of the Supreme Court. As the Courts, yet again, deliberate on a politically charged issue that will certainly contribute to this year’s debates, Americans from the Right and Left weigh-in on the constitutionality of what is quite possibly the most controversial immigration law to date.
S.B. 1070 is essentially an overreaching and valiant attempt of states to make up for the federal government’s reluctance to act on long-overdue hotbed issues that have affected the economic, social and civil well-being of the nation for decades. While it is more than understandable that states that infinitely face the tough conundrum of dealing with immigration have grown impatient with the Executive and Legislative branches and choose to take matters into their own hands, that responsibility still rests in the federal government’s pens and papers.
The legitimate grievances that have been expressed on the opposing side of S.B. 1070 are not the ones that condemn the state for practicing “attrition through enforcement,” or the principle of aggressively enforcing all anti-immigration laws to deter the unlawful entry and presence of illegal aliens, nor the ones that engage in moral discourse surrounding the proverbial family and small business that is torn to shreds because of a supposedly hypocritical conservative political climate that “forgets we all were once immigrants.” What truly deserves credence is the contention that the legislation (1) sanctions racial profiling and (2) oversteps state rights.
The first argument is harder to prove through precedents and/or the Constitution than the second. In some ways, it may come off as an assertion that is made through anecdotal evidence, class action suits and countless media reports of Hispanic-Americans, Puerto Ricans, and non-illegal immigrants of Hispanic descent being profiled, questioned and detained in border states, or the documented workers who simply did not have their papers on their persons. Just as Terry v. Ohio practically gives police the amnesty to violate the Fourth Amendment under the purely partial application of “reasonable suspicion,” which by no surprise disproportionately targets African Americans, S.B. 1070 opens the flood gates to the profiling of Hispanic-Americans and the expansion of the police state environment that so often plagues the non-majority. Section 2(B) of S.B. 1070, which requires state and local officers to conduct roadside immigration checks if the person they stopped or detained exhibits “reasonable suspicion” of being an undocumented worker, is an open invitation for officers to decide what an undocumented worker looks like and how he/she behaves. Thus, the policy's intended effect of targeting aggravated felons is outweighed by the consternation it imposes on peaceful and law abiding individuals. Nationally speaking, only 55% of the record 397,000 individuals deported in 2011 had a felonious record. Not to mention, some may not have even committed a crime at the time they were deported.
The second talking point rests in a plethora of precedents that upholds the Constitution’s Supremacy Clause in regards to what the federal government preempts in the Immigration Nationality Act (INA). While immigration polices laid out by INA, as well as the 287 (g) program, enables state and local officers to assist federal authorities in identifying and removing local nationals, it is primarily concerned with criminal violations and not civil immigration violations (which are infractions). Any other interpretation would muddy the line between “assisting” the attorney general and federal enforcement (as INA expresses) and commandeering state and local officers and giving them the new authority to “act as” federal officers.
But then the decision in De Canas v. Bica (1976) is presented. Is Arizona’s state law at odds with anything that’s been expressed or preempted by the objectives and legislation put forth by the federal government? Or is it simply acting as a sovereign and using police power “to protect the lives, health, morals, comfort, and general welfare of the people…" Manigault v. Springs (1905)? As far as the principle of expressio unius goes, it is preempted by federal law. What isn’t explicitly expressed by federal law is excluded. Therefore, when INA specifically grants local and state officers the right to identify and remove nationals in criminal arrests but entirely excludes any mentioning of the same act under civil violations, it can be assumed that the right or authority for local and state officers to do so is excluded.
Regardless of the outcome of Arizona v. United States, and the strange political climate of courts slamming the gavel on election year issues, many questions will remain unanswered until the federal government accepts responsibility. Immigration laws affect foreign relations and can very well define the image and ethics of the nation as a whole. Until the federal government lays out specific and stringent immigration laws and retires from the Main Street culture of passing the hot potato to the next administration, Arizona, Alabama, Texas and other states have no choice but to patiently wait.