Starting today, U.S. District Court Judge Susan Bolton will begin hearing arguments for and against Arizona's "show me your papers" law, SB 1070. She'll be hearing from an Arizona cop today and civil rights groups and the Justice Department next week. She'll be deciding whether to temporarily halt the law from going into effect on July 29. But ultimately, the big question she'll have to contend with is whether Arizona's law is constitutional or not.
We got a jumpstart on the court by talking with constitutional legal scholars.
Some, including Temple University law professor Peter Spiro, have already noted that the Constitution doesn't use the word immigration. It does say that Congress can regulate naturalization, and some SB 1070 supporters are claiming that the word naturalization is only about who gets to be a citizen --- not about who's coming across the border. So the feds are in charge of naturalization per the Constitution, goes the argument, but not immigration.
This makes for good political fodder in the blogosphere but it won't have any traction in court, according to Steven D. Schwinn, associate law professor at the John Marshall Law School in Chicago.
"Naturalization is whether or not people are becoming citizens and a principle way of doing that is by coming into the country," says Schwinn.
More importantly, he notes, the federal government has a large immigration system in place. Yes, it might be broken, ineffective and inhumane, but it's still a system of federal laws and the federal courts have recognized over and over again that immigration is Washington's problem. Per the Constitution, states can't pass legislation that would interfere with federal policy.
So the court's big question is: Does SB 1070 mess with federal law?
People across the country will be expecting a straightforward yes or no, but the court is probably going to take the statute apart and examine it in portions --- which means the court might invalidate some parts of SB 1070 and let others stand, according to Richard Friedman, an expert on constitutional law at the University of Michigan Law School. "It's going to be at the level of grubby detail," he says.
SB 1070, for example, makes it a crime to not have proof of citizenship. Despite the claims of xenophobes, it's actually not a crime to be in the country without papers. It's a civil violation. Arizona makes it a state crime.
This might sound like a slam dunk. The Arizona state law is setting a different policy from the federal one. But difference doesn't mean interference. According to Friedman, Arizona could argue "that nothing in federal law says that it can't be a criminal law. The federal government says it's a civil violation and the state is making it a criminal violation."
Where the court might rule that the Arizona law does conflict with the federal one is on foreign relations, according to both Friedman and Schwinn.
The Justice Department has argued in its lawsuit against SB 1070 that the law interferes with foreign policy and with Congress's right to regulate commerce. Now, it might be a bit touchy to say that Juanito down the street is part of international commerce, but considering that people are coming here to work and are sending money back to their home countries, it's plausible. The court will apparently be very receptive to this.
"When the federal government comes in and says this is hurting our efforts to conduct foreign relations, the courts tend to listen," says Friedman.
On the issue of racial profiling, the court will need to do some serious soul searching.
Yes, SB1070 would violate the Fourth Amendment, which protects people against unreasonable searches and seizures. But according to a Washington Post oped by Gabriel Chin, a law professor at the University of Arizona, and Kevin Johnson, a law professor at UC Davis, this amendment is being violated all the time, even now by the Obama administration:
"Border enforcement officers regularly admit in court that 'Hispanic appearance' is one reason for an immigration stop," they write.
According to Chin and Johnson, this can happen because in 1975 the Supreme Court ruled that the "likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor" for Border Patrol agents to question people. Arizona's law is unique in that it turns these violations that happen routinely along the Border into statewide policy.
"I'm not sure that there's going to be one magic bullet that resolves the whole case," of SB1070, Friedman notes.
Just last year, the Ninth Circuit ruled that Arizona's law to suspend the business licenses of employers hiring undocumented workers didn't conflict with federal law. SB 1070 proponents have practically worn out their vocal chords from telling people about that case, insisting SB 1070 will prevail in the same way.
The reality is that although federal law prohibits states from punishing employers who hire undocumented workers, it has a clause saying states can basically do what they want on the issue of licensing. So Arizona said, thanks, we'll interpret that to mean we can take away a business's license if we find out they're hiring undocumented immigrants. And the federal court agreed. The Supreme Court decided last month to review the case.
Photo: istock/Stefan Klein