Guest post by Professor Angela Banks
The Supreme Court’s decision in United States v. Arizona affirms the federal government’s supremacy to regulate immigration. Yet the Court’s opinion left two key legal issues to be decided by lower courts. First, whether states have the independent authority to detain individuals for immigration crimes and second, whether racial profiling is used to identify unauthorized migrants and whether such profiling is unconstitutional. Debates about the substance of immigration regulation and what the country’s immigration enforcement priorities should be will continue, but the Court’s opinion makes clear that the authority to establish such substance and priorities rests with the federal government.
The Court held that federal law preempted three of the four challenged provisions of Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act (S.B. 1070), and that it was too early to determine if the fourth provision was preempted by federal law.
The three provisions held preempted by federal law were:
- Section 3, which made failure to comply with federal alien registration laws a state misdemeanor;
- Section 5, which made seeking or engaging in work by an unauthorized migrant a state misdemeanor;
- Section 6, which authorized police officers to arrest a person without a warrant if the officer had probable cause to believe that the person committed a public offense that made the person deportable.
Section 2(B) is the one provision that the Court concluded was not preempted. This is the provision that is best known from S.B. 1070. Section 2(B) requires police officers to ascertain the immigration status of an individual that the officer stops, detains, or arrests in certain circumstances. The Court concluded that whether federal law preempted this provision depends on how the provision is actually applied in practice.
Future Litigation: As-Applied Challenges
The application of section 2(B) could conflict with federal law if it causes prolonged detentions for non-immigration offenses or detention for unlawful presence without federal direction or supervision. The Court stated that “[d]etaining individuals solely to verify their immigration status would raise constitutional concerns.”
Anecdotal evidence from jurisdictions with similar provisions suggests that detention times for non-immigration offenses are routinely prolonged while immigration status is checked. In minor criminal offense cases when an individual would normally be eligible for bail and released after posting bond, some jurisdictions refuse to set bail for immigrant inmates, prevent them from posting bond, or hold them despite posting bond until Immigration & Customs Enforcement (ICE) has decided whether or not to detain the individual. During this time period, the individual is not being held subject to an ICE detainer or any other direction from federal officials.
This suggests that the kind of prolonged detention that the Court identified as potentially constitutionally problematic is likely to occur once section 2(B) is implemented. Yet concluding that such prolonged detention is constitutionally problematic depends on whether state law enforcement officials have the authority to investigate illegal entry and other immigration crimes. If they have such authority, prolonging detention to investigate the immigration crime may not be constitutionally problematic. The Court left this question unanswered and it is one that will be litigated in the lower courts.
The implementation of section 2(B) will also raise other constitutional issues like equal protection violations based on racial profiling. This issue was not before the Court, but it is the issue that has been prominent in public discussions of this case. Fourteenth Amendment equal protection challenges will be difficult due to the Supreme Court’s decision in United States v. Brignoni-Ponce. In that case, the Court held that “Mexican appearance” can be one of several factors used to establish reasonable suspicion of unlawful presence. Racial profiling by Arizona law enforcement officials is currently the subject of federal investigation and we are likely to see additional lawsuits raising this issue.
Debating Immigration Enforcement Priorities
While the Court’s opinion left a number of questions unanswered, one question it resolved was whether states have the authority to establish immigration enforcement priorities. Throughout the opinion the Court reaffirmed the federal government’s broad authority to regulate immigration, and therefore to set enforcement priorities. Current debates about unauthorized migration reflect disagreements about how to enforce immigration law and what the enforcement priorities should be. The Court suggested that resolution of these political issues should be based on a political will that is “informed by searching, thoughtful, rational civic discourse.” As immigration issues are litigated in courts, debated in legislatures, and discussed in various public forums, it is my hope that our discourse will in fact be searching, thoughtful, and rational.
Angela M. Banks is an associate professor at William & Mary School of Law. Her research interests include immigration, international law, and human rights.