Arizona SB-1070 and the U.S. Supreme Court: “An Unjust Law Is No Law At All”

MINOLTA DIGITAL CAMERAContinuing in our Critical Race Theory blog series, I’d like to turn this week to the topic of undocumented immigration.  Since this topic is a major focus of us “LatCrits,” and since I’m teaching about this topic in one of my classes as we speak, I thought it would work nicely for the blog.   This week’s blog post will focus on Arizona SB-1070 and the recent United States Supreme Court ruling on this invidious state legislation.     According to the Arizona state legislature, the goal of SB-1070 was to discourage undocumented immigration through “attrition”:

“The legislature finds that there is a compelling interest in the cooperative enforcement of federal immigration laws throughout all of Arizona.  The legislature declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona.  The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States. “

Attrition.  This is a word used when talking about WAR.   Through SB-1070, the state of Arizona sought to wage a metaphorical war on undocumented immigrants.

Arizona SB-1070 sought to wage this war through four main provisions:

1.  Section 3 made it a misdemeanor for failure to comply with federal immigrant registration requirements.

2. Section 5(C) made it a misdemeanor for an unauthorized immigrant to seek or engage in work in the state.

3. Section 6 authorized state and local officers to arrest, without a warrant, a person “the officer has probable cause to believe . . . has committed any public offense that makes the person removable from the United States.”

4. Section 2(B) requires officers conducting a stop, detention, or arrest to verify the person’s immigration status if they have “reasonable suspicion” that the individual is undocumented.

Drawing a parallel between SB-1070 and apartheid in South Africa, here’s what Bishop Desmond Tutu had to say about the law:

“I am saddened today at the prospect of a young Hispanic immigrant in Arizona going to the grocery store and forgetting to bring her passport and immigration documents with her. I cannot be dispassionate about the fact that the very act of her being in the grocery store will soon be a crime in the state she lives in. Or that, should a policeman hear her accent and form a "reasonable suspicion" that she is an illegal immigrant, she can -- and will -- be taken into custody until someone sorts it out, while her children are at home waiting for their dinner…

But a solution that degrades innocent people, or that makes anyone with broken English a suspect, is not a solution. A solution that fails to distinguish between a young child coming over the border in search of his mother and a drug smuggler is not a solution.

I am not speaking from an ivory tower. I lived in the South Africa that has now thankfully faded into history, where a black man or woman could be grabbed off the street and thrown in jail for not having his or her documents on their person.”  Huffington Post.

Powerful stuff. 

Bishop Tutu draws attention to two major criticisms which have been wielded against Arizona SB-1070 by religious leaders and immigrant advocates.  The first criticism is that SB-1070 emphasizes draconian enforcement of U.S. immigration laws while at the same time overlooking the profound economic contributions made by undocumented immigrants and the overall brokenness of the U.S. immigration system.

Although undocumented immigrants contribute in vital ways to the economy of our nation, their extraordinary contributions have not been officially recognized in U.S. immigration policy through the provision of a commensurate number of worker visas and a pathway to citizenship.  6.3 million undocumented immigrant workers contribute more than $2 trillion per year to the Gross Domestic Product of the United States.  But guess how many unskilled labor visas the U.S. government issued in 2010: 4,762!   The annual cap on unskilled labor visas, moreover, is set at only 10,000.

It’s simple math:  6.3 million unauthorized workers contribute more than $2 trillion per year to the U.S. economy, but through its immigration policy the United States officially recognizes that it needs only 10,000 new unskilled workers each year.   This is unjust, and this is why the U.S. immigration system is broken. 

Arizona SB-1070 is oppressive because, like the federal immigration policy of the United States, it completely overlooks the essential economic contributions made by undocumented immigrants.   SB-1070 scapegoats and blames unauthorized immigrants for the economic problems of the state and the nation without acknowledging the big picture brokenness of the U.S. immigration system.  Even worse, it criminalizes undocumented immigrants for working!  It criminalizes them for the vital economic contributions they make to the Arizona economy.  The state of Arizona benefits massively from these important contributions, yet at the same time it seeks to criminalize undocumented immigrants for these very same economic contributions.

This blatant hypocrisy constitutes biblical oppression.  Throughout the Bible, God clearly warns against the oppression and exploitation of immigrants.  Here are several verses which proffer this warning:

You shall not pervert justice due the stranger (immigrant) or the fatherless, nor take a widow’s garment as a pledge.” Deut 24: 17.

“Cursed is the one who perverts the justice due the stranger, the fatherless, and widow.”  Deut 27: 19.

“Do not oppress an alien; you yourselves know how it feels to be aliens, because you were aliens in Egypt.  Exodus 23: 9

A second major criticism of SB-1070 raised by Bishop Tutu and other immigrant advocates is that SB-1070 will lead to racial profiling.   Section 2(B) requires police officers to check the immigration status of an individual they arrest or detain on an unrelated criminal matter--if they have a “reasonable suspicion” that the person arrested or detained is undocumented.   But what constitutes “reasonable suspicion” of being undocumented?  An accent?  A person’s skin color?  A section of town in which a person lives?  Will this law be equally applied to undocumented Canadians and Europeans, of which there are many?   Will U.S.-citizen Latinos like myself be targeted for racial profiling because of Section 2(B)? What about U.S.-citizen Asian Americans?

To be fair, at least in theory, Section 2(B) has several express limitations:

1.  According to the terms of the legislations, a detainee is presumed not to be an undocumented immigrant if he or she provides a valid Arizona driver’s license or similar identification.

2. Officers may not consider race, color, or national origin except to the extent permitted by the U.S. and Arizona Constitutions.

3. SB-1070 must be “implemented in a manner consistent with federal law regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens.”

Call me cynical, but given my own experiences with racial profiling and the experiences of close friends, I am not hopeful that these limitations will effectively screen for abuse.  We shall see…

SCOTUS:  The Supreme Court of the United States

SCOTUS ruled upon the constitutionality of Arizona SB-1070 this past fall.   Here’s what they said:

Sections 3, 5(C), and 6 are unconstitutional.   Stated simply and without legal jargon, these three sections are unconstitutional because they conflict with federal law.   

According to the U.S. Constitution, the regulation of immigration is the job of the federal government.  These three sections conflict with federal law and the federal regulation of immigration.

The Court found Section 2(B) to be constitutional—at least for the time being.   

According to SCOTUS, federal law clearly allows, and even encourages, states to be in contact with federal authorities to verify the immigration status of suspected undocumented immigrants.  And so, said SCOTUS, there’s nothing wrong, at least in theory, with Section 2(B).  This provision simply requires Arizona police officials to contact the federal government to check on the immigration status of suspected unauthorized immigrants—something they are clearly allowed to do by federal law.  It’s important to underscore again, however, that these types of immigration status checks can only occur within the context of an arrest or detention on a separate criminal matter.  Moreover, the final authority for enforcing U.S. immigration law still rests in the hands of the federal government.

Although the constitutionality of Section 2(B) was upheld, SCOTUS also made it clear that legal challenges could still arise in the future if the law ends up conflicting with federal immigration law or the Constitution when implemented.   A legal challenge could especially arise if Section 2(B) leads to lengthy detentions of immigrants which are unrelated to the original charge for which they were detained or arrested:

“This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.”

“It is not clear at this stage and on this record that §2(B), in practice, will require state officers to delay the release of detainees for no reason other than to verify their immigration status.  This would raise constitutional concerns.”

Presumably, the constitutionality of SB-1070 could also be challenged if it in fact leads to racial profiling.

I close with a quote from St. Augustine which was highlighted by Rev. Martin Luther King, Jr. in his famous, “Letter from A Birmingham Jail” (http://mlk

An unjust law is no law at all.

I agree,

Robert Chao Romero