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Supreme Court Overturns Much of Arizona’s Immigration Law, Keeps ‘Papers Please’

Supreme Court Overturns Much of Arizona’s Immigration Law, Keeps ‘Papers Please’

by Karen Ocamb on June 25, 2012

(UPDATED 11:30am PST) The US Supreme Court is issuing its rulings this week before adjourning with the ruling on the Affordable Care Act expected to come on Thursday. Today, the high court ruled on Arizona’s controversial “papers please” law, which has become a model for other states and a hot topic on the presidential campaign trail with President Obama opposing the law and former Massachusetts Gov. Mitt Romney wanting it replicated elsewhere. The political fallout is still to be determined. Here’s an excerpt from the Washington Post’s report on the decision:

The court ruled that Arizona cannot make it a misdemeanor for immigrants to fail to carry identification that says whether they are in the United States legally; cannot make it a crime for undocumented immigrations to apply for a job; and cannot arrest someone based solely on the suspicion that the person is in this country illegally.

However, the court let stand the part of the law that requires police to check the immigration status of anyone they detain, if there is “reasonable suspicion” that the person is unlawfully in the United States. Even there, though, the justices said the provision could be subject to additional legal challenges. The court said it was “improper” for the federal government to block the provision before state courts have a chance to interpret it and without determining whether it conflicts with federal immigration law in practice.

The court said it would issue its final major ruling of the term, on President Obama’s signature health-care law, on Thursday.

Monday’s decision is likely only the first of many legal rulings to come on immigration, as states increasingly are defining a new role for themselves in combating the illegal entry of people into the United States. Arizona’s law has spawned similar efforts in Alabama, Georgia, Indiana, South Carolina and Utah, all of which have been challenged in court.

At the April oral arguments over the Arizona statute, designated S.B. 1070, chanting protesters said the law had created a climate of fear among Arizona’s mostly Latino immigrant population and predicting that it will lead to racial and ethnic profiling.

But the court made it clear that it was not considering those issues at this time. Instead, the deliberations were a revival of the questions of federal power and states’ rights that marked the court’s deliberations about President Obama’s health-care law.

The federal government had contended that the Arizona law, with its aim of “attrition through enforcement,” undermined the federal goal of a cohesive immigration policy by attempting to shift the problem of illegal immigration to other states.

“The Constitution vests exclusive authority over immigration matters with the national government,” Solicitor General Donald B. Verrilli Jr. said at oral argument.

Former Bush administration solicitor general Paul D. Clement said that Arizona was trying to cooperate with the federal government.

“Arizona borrowed the federal standards as its own, and attempted to enlist state resources in the enforcement of the uniform federal immigration laws,” Clement said.

The Obama administration has taken a tough stance against the Arizona law and against most of the other states that have implemented their own laws. Its lawyers went to court early to block S.B. 1070, and won at both the district court level and the U.S. Court of Appeals for the 9th Circuit.

The National Gay & Lesbian Task Force responded to the high court keeping intact the “papers please” provision:

The National Gay and Lesbian Task Force, a longtime advocate for comprehensive and humane immigration reform, responded to the U.S. Supreme Court ruling today striking down significant portions of SB 1070, Arizona’s anti-immigrant law. The court did, however, leave intact the racist “show me your papers” provision. The Task Force has repeatedly spoken out against the unjust law.

Statement by Rea Carey, Executive Director National Gay and Lesbian Task Force:

“This ruling strikes down some key provisions of a draconian law that makes people more vulnerable to abuse. SB 1070 and laws like it only serve to divide us by opening the door to racial profiling, infringement of civil rights, and harassment and violence against those seen as ‘different.’ While we are encouraged by parts of today’s decision, the path has been cleared for the most offensive portion of the law – the ‘show me your papers’ provision – to take effect. Nobody should be forced to live in constant fear of having their family torn part, of being separated from their loved ones, while simply trying to go about their daily lives.

“The bottom line is that Arizona’s anti-immigrant law is a license to discriminate. Lesbian, gay, bisexual and transgender people know all too well how easily those who are perceived to ‘look different’ or ‘act different’ can be singled out for persecution.

“This ruling spotlights the critical need for comprehensive immigration reform, and we continue to urge Congress to make it a priority. Laws that target and demonize people are not the answer; stripping people of their civil liberties and humanity is not the answer. Our political leaders must work toward reform that is fair and humane. SB 1070  was a cruel, ill-conceived idea that wasted taxpayer dollars and demeaned our country’s values of fairness and freedom.”

Update: Chris Geidner from MetroWeekly reports on the response from more than 30 LGBT and HIV/AIDS organizations, who call for national immigration reform in the wake of the Supreme Court ruling (see Chris’ story for full analysis; see statement and list of groups below):

The joint statement by dozens of organizations that work on LGBT and HIV/AIDS issues, led by the Center for American Progress and Lambda Legal, and including the Human Rights Campaign and National Gay & Lesbian Task Force, drew on the organizations’ specific focus while also advocating for wholesale immigration reform.

“The ‘show-me-your-papers’ provision in SB 1070 is clearly discriminatory but unfortunately was not struck down. LGBT immigrants and LGBT people of color remain particularly vulnerable because this provision in SB 1070 requires police to stop and question people based on their appearance. The LGBT community knows all too well how easily people who are perceived to ‘look different’ or ‘act different’ can be singled out for harassment and persecution,” they state. “The law particularly threatens LGBT people of color and LGBT immigrants, many of whom already experience heightened hostility, harassment, and even violence based on their appearance, behavior, dress, and other characteristics. This wrongful treatment often occurs at the hands of local officials who lack a basic understanding of sexual orientation and gender identity and expression diversity.”

Of the broader picture of America’s immigration policy, they note, “SB 1070, and the copycat laws it has spawned in other states, exacerbate the fear and distrust that dissuade many LGBT immigrants and LGBT people of color from seeking protection from — or offering to assist — law-enforcement officials.

“While leaving the ‘show me your papers’ provision in effect is a setback for the cause of civil rights in America, the court left the door open for advocates to challenge this bad part of the law by showing that it discriminates and harms people.  Along with other advocates devoted to immigrant rights and racial justice, we will fight to protect basic civil rights and we won’t stop until we win respect, dignity and equal treatment under the law for everyone.”

In conclusion, the group of organizations look forward to future efforts at reform: “Today’s mixed ruling strikes down key parts of a bad law. But the fact remains that our nation’s immigration system is broken, and we need comprehensive immigration reform that is fair to everyone, and is inclusive of LGBT immigrants and their families. We will work with our allies in the immigrant rights community to make this reform a reality, and call on Congress to move swiftly to correct the flaws riddling the present immigration system and provide a path to legalization for the nation’s undocumented immigrants.”

(UPDATE 11:40)

Both the White House and “papers please” advocate Arizona GOP Gov. Jan Brewer declared victory:

The White House statement from President Obama:

“I am pleased that the Supreme Court has struck down key provisions of Arizona’s immigration law. What this decision makes unmistakably clear is that Congress must act on comprehensive immigration reform. A patchwork of state laws is not a solution to our broken immigration system – it’s part of the problem…

At the same time, I remain concerned about the practical impact of the remaining provision of the Arizona law that requires local law enforcement officials to check the immigration status of anyone they even suspect to be here illegally. I agree with the Court that individuals cannot be detained solely to verify their immigration status. No American should ever live under a cloud of suspicion just because of what they look like. Going forward, we must ensure that Arizona law enforcement officials do not enforce this law in a manner that undermines the civil rights of Americans, as the Court’s decision recognizes.

Brewer’s statement on Monday called decision a “victory for the rule of law.”

Today’s decision by the U.S. Supreme Court is a victory for the rule of law. It is also a victory for the 10th Amendment and all Americans who believe in the inherent right and responsibility of states to defend their citizens. After more than two years of legal challenges, the heart of SB 1070 can now be implemented in accordance with the U.S. Constitution.

Per Mediate, Brewer also told reporters:

“The case for S.B. 1070 has always been about our support for the rule of law. That means every law, including those against both illegal immigration and racial profiling.Law enforcement will be held accountable should this statute be misused in a fashion that violates an individual’s civil rights.”

The New York Times reported on Republican presidential candidate Mitt Romney’s statement: 

“I believe that each state has the duty – and the right – to secure our borders and preserve the rule of law, particularly when the federal government has failed to meet its responsibilities.”

Statement from LA Mayor Antonio Villaraigosa:

“I am heartened by today’s Supreme Court decision to strike down key elements of Arizona’s controversial SB 1070. The Supreme Court rightly upheld the bedrock constitutional principle that the federal government alone has the power to regulate immigration. It is clear that the Obama Administration and the Department of Justice were right to challenge this law.

But today’s ruling must be seen as only a partial victory. The Supreme Court’s decision does allow Arizona to implement the law’s most problematic and potentially most harmful section: the ‘papers please’ provision.

By requiring police officers to demand documents of anyone they suspect of being in the country without authorization, Arizona risks creating a culture of fear and suspicion. Implementation of the law will undermine the trust between the police and the public, driving a wedge between police officers and the community they serve. The papers please provision opens the door for racial profiling, and I believe it will be impossible to implement this law without discrimination. This will just invite further litigation.

In today’s decision, the Supreme Court rightly drew attention to the lasting contributions that immigrants have made to this country. We need a sensible and humane national immigration policy. We do not need a confusing patchwork of 50 state laws. It is time for Congress to act. It is time to pass the DREAM ACT and it is time to enact comprehensive immigration reform. We need a national solution to this national challenge.”

Here’s the statement from the LGBT and HIV/AIDS groups:

(New York, June 25, 2012) – In a mixed ruling, the Supreme Court today struck down key parts of SB 1070, Arizona’s draconian anti-immigrant law. The nation’s leading organizations advocating on behalf of the lesbian, gay, bisexual, and transgender (LGBT) population and people living with HIV/AIDS responded to the ruling and expressed support for comprehensive immigration reform that includes LGBT people and their families.

The “show-me-your-papers” provision in SB 1070 is clearly discriminatory but unfortunately was not struck down.  LGBT immigrants and LGBT people of color remain particularly vulnerable because this provision in SB 1070 requires police to stop and question people based on their appearance. The LGBT community knows all too well how easily people who are perceived to “look different” or “act different” can be singled out for harassment and persecution.  The law particularly threatens LGBT people of color and LGBT immigrants, many of whom already experience heightened hostility, harassment, and even violence based on their appearance, behavior, dress, and other characteristics. This wrongful treatment often occurs at the hands of local officials who lack a basic understanding of sexual orientation and gender identity and expression diversity.

SB 1070, and the copycat laws it has spawned in other states, exacerbate the fear and distrust that dissuade many LGBT immigrants and LGBT people of color from seeking protection from – or offering to assist – law-enforcement officials. While leaving the “show me your papers” provision in effect is a setback for the cause of civil rights in America, the court left the door open for advocates to challenge this bad part of the law by showing that it discriminates and harms people.  Along with other advocates devoted to immigrant rights and racial justice, we will fight to protect basic civil rights and we won’t stop until we win respect, dignity and equal treatment under the law for everyone.

As the Supreme Court recognized in its majority decision today: “Immigration policy shapes the destiny of the Nation,” and the “history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here.” The Court has made clear that states “may not pursue policies that undermine federal law.”  For example, Arizona cannot create its own system for immigration registration, impose criminal penalties on immigrants who are seeking work, or make warrantless arrests of immigrants based on possibility of removability.  This recognition is an important victory for people and communities across the United States.  Instead of targeting and criminalizing immigrants and other marginalized groups, communities should be enacting and implementing forward-looking, progressive measures that integrate, protect and ensure equality for all people, including immigrants.

Today’s mixed ruling strikes down key parts of a bad law. But the fact remains that our nation’s immigration system is broken, and we need comprehensive immigration reform that is fair to everyone, and is inclusive of LGBT immigrants and their families. We will work with our allies in the immigrant rights community to make this reform a reality, and call on Congress to move swiftly to correct the flaws riddling the present immigration system and provide a path to legalization for the nation’s undocumented immigrants.

List of Organizations:

Lambda Legal
LGBT Progress at the Center for American Progress
AFL-CIO – Pride at Work
Atticus Circle
Center Link: The Community of LGBT Centers
COLAGE
Consortium of Higher Education Lesbian Gay Bisexual Transgender Resource Professionals
Equality Federation
Family Equality Council
Freedom to Marry
GLAAD
Gay & Lesbian Advocates & Defenders (GLAD)
Gay & Lesbian Medical Association (GLMA)
Gay, Lesbian & Straight Education Network (GLSEN)
HIV Law Project
Human Rights Campaign
Immigration Equality
International Federation of Black Prides, Inc.
Latino Commission on AIDS
PFLAG National (Parents, Families and Friends of Lesbians and Gays)
Services and Advocacy for GLBT Elders (SAGE)
The National Alliance of State and Territorial AIDS Directors (NASTAD)
National Black Justice Coalition (NBJC)
National Center for Lesbian Rights (NCLR)
National Center for Transgender Equality (NCTE)
National Coalition for LGBT Health
National Gay and Lesbian Chamber of Commerce
National Gay and Lesbian Task Force Action Fund
National Queer Asian Pacific Islander Alliance
Out & Equal Workplace Advocates
Transgender Legal Defense and Education Fund (TLDEF)

Statement by Lavi Soloway, Stop The Deportations – The DOMA Project:

“Today’s 5-3 Supreme Court ruling struck down most of the notorious Arizona immigration enforcement law SB 1070 as an unconstitutional infringement on federal authority.  This was a clear win for the Obama administration and for immigration advocates, and a decisive blow to anti-immigrant activists and politicians like Arizona Governor Jan Brewer who argued that states could enforce federal immigration law.

Writing for the majority, Justice Kennedy repeatedly affirmed the broad discretionary powers of the executive branch to enforce immigration law, including the broad discretion exercised by immigration officials not to pursue cases with good equities.  This language supports the Obama administration’s June 15 decision to grant deferred action and halt the deportations of the children of undocumented immigrants, and provides further support for our campaign to stop all deportations of spouses and partner of lesbian and gay Americans.

As an advocate of immigration reform, I remain concerned that the Court did not strike down what is widely considered the most controversial “racial profiling” provision of the law, Section 2(B). That section requires Arizona police officers to verify immigration status when stopping, arresting, or detaining someone. All immigrant communities and activists, including LGBT advocates, are right to be concerned that this provision violates federal authority in immigration enforcement and would lead to racial profiling and targeting of vulnerable communities.

However, the Supreme Court today did not give §2(B) the proverbial “Good Housekeeping Seal of Approval.” The Supreme Court narrowly allowed that provision to stand for now, but essentially warned the State of Arizona (and other states who are seeking to mimic Arizona’s attempt to usurp federal authority in this area) that this provision could be struck down in the future depending on how it will be applied in practice or how state courts interpret its scope. In fact, Justice Kennedy all but predicted that the “papers please” provision would be revisited by the Supreme Court if this state police power is used in a way that violates federal authority.  It is disappointing that §2(B) was not struck down today, but I remain optimistic that it will not survive constitutional scrutiny when it is inevitably challenged in the future given the standard set forth today by the Supreme Court.”

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