By Jan C. Ting
The Obama administration's challenge to the Arizona immigration statute SB1070 is not about its popularity, or whether the statute is wise or unwise policy. Legislatures are permitted to enact unpopular or even unwise laws. And as Chief Justice Roberts observed, and the administration's lawyer agreed, the challenge is also not in any way about civil rights or racial profiling.
The challenge to SB1070 before the Supreme Court is over the narrow question of whether that statute enacted by the Arizona legislature conflicts with federal immigration statutes enacted by the United States Congress. Since Wednesday's oral argument at the Supreme Court, supporters of the Arizona statute are increasingly hopeful that the high court will uphold most if not all of SB1070, and its opponents correspondingly resigned to that result.
SB1070 requires state and local law enforcement to verify the immigration status of anyone legally stopped if there is also "reasonable suspicion" of unlawful status, and authorizes arrest without warrant upon "probable cause" to believe that a public offense has been committed that makes a non-citizen removable. Those provisions are entirely consistent with provisions in the federal immigration law protecting the ability of state and local officers to communicate with Federal immigration officers to ascertain someone's immigration status, and which mandate that the Federal government "shall respond" to an inquiry from state or local government seeking to verify or ascertain immigration status of any individual for any lawful purpose.
As the U.S. Court of Appeals for the 10th Circuit has stated, "Congress passed a series of provisions designed to encourage cooperation between the federal government and the states in the enforcement of federal immigration laws… This collection of statutory provisions evinces a clear invitation from Congress for state and local agencies to participate in the process of enforcing federal immigration laws."
SB1070 criminalizes unlawful presence of non-citizens without legal documentation. But federal immigration law already criminalizes failure by non-citizens to register with the federal government and "at all times carry with him and have in his personal possession" documentary evidence of such registration. So no conflict with federal law there.
Federal law punishes employers for hiring persons not lawfully in the U.S. Arizona's statute prohibits a person not lawfully in the U.S. from seeking work and makes it a crime. Is that a conflict, or an acceptance by Arizona of the invitation from Congress "to participate in the process of enforcing federal immigration laws"? If the high court wants to "balance" its decision on SB1070, this part of SB1070 is the most likely to be found in conflict with federal law, though that conflict is certainly debatable and unclear.
At the root of the national debate over immigration is the unwillingness of elected officials of both parties, including President Obama, to decide whether the U.S. should have open borders with no numerical limit on immigration, or alternatively, whether we should enforce an annual numerical limit on immigration to the U.S. as enacted by Congress. It's a simple question, no limits or limits?
They don't want to repeal the numerical limit and declare the borders open because that would be unpopular. But they also don't want to enforce the numerical limit enacted by Congress because that would require actually removing people from the U.S. who have entered in violation of the legal limit, and that could cost them votes and political support, too.
So we end up with the current illogical policy of advocating a legal limit but refusing to actually enforce that limit against anyone who hasn't been convicted of a serious crime and who isn't a national security threat. Arizona, with 370 miles of international border with Mexico has been left in the lurch by that incoherent policy.
Arizona is believed to have an illegal population of 400,000 out of 6.4 million total residents, which has triggered an on-going financial crisis over the increased costs for public education, emergency health care, and law enforcement and incarceration. Janet Napolitano, now Homeland Security Secretary in the Obama administration, was Arizona's governor back in 2005 when she declared an immigration emergency in the state and complained that, "The federal government has failed to secure our border, and the health and safety of all Arizonans is threatened daily by violent gangs, coyotes and other dangerous criminals."
Whether you think SB1070 is good policy or not, everyone should understand why the Arizona legislature enacted it, why it continues to be supported in Arizona and other states affected by illegal immigration, and why the Supreme Court is likely to uphold it.
Jan C. Ting, Professor of Law Temple University Beasley School of Lawe-mail: firstname.lastname@example.org.