An American citizen, entering the park after hours, jogging, without a wallet, has no proof of status. This American citizen can be detained, taken to the precinct, and strip searched while the local police make a call to INS.
[A Matter Of Justice]
Protesters. Politicians. Pundits.
Arizona’s immigration law brought these huddled masses to the marble walkway of the U.S. Supreme Court. A state law meant to quell illegal immigration was argued before a receptive Court. Arizona wants to imbue local police with immigration power previously held only by the federal government. Police would be empowered to stop, frisk, strip search, and detain, for hours or days, men, women, and children, based on suspected illegal immigration status.
Arizona’s law, SB 1070, requires local police officers to detain anyone suspected of being in the country illegally. Arizona, bordering Mexico, faces the challenge of illegal immigration which has taxed its public education and health systems while allegedly increasing crime. Arizona’s legislature enacted SB 1070 in the face of heightened illegal immigration presumably ignored by the federal government.
At first glance, Solicitor General Donald Verrilli seemed to have the stronger argument. Under Article 1 of the U.S. Constitution, the federal government has power over immigration; the federal government may preempt any area which overlaps state laws, and the supremacy clause gives the federal government a superior position over state and local governments. Then, the arguments began. The federal government’s case faded while Arizona’s flourished.
Attorney Paul Clement represented Arizona. He argued the state was merely assisting a beleaguered federal government, not encroaching on federal authority. Arizona’s law ran parallel to federal immigration law. SB 1070 enforced current federal laws against illegal immigration. Laws, he argued, the federal government had no interest in enforcing.
This suit was filed by the federal government, after the Arizona law was passed; but, before it was instituted. Yet, each time Solicitor Verrilli attempted to explain the federal government’s position, he floundered. He even agreed that the federal government did not always enforce immigration laws. The government had limited resources and many other priorities.
Nationwide, protesters charged Arizona’s law was flagrant profiling of Hispanics. Yet, Solicitor Verrilli barely commenced his argument when he was cut short by Chief Justice John Roberts. Chief Justice Roberts inquired whether the federal government intended to raise racial or ethnic profiling issues. Incredibly, the Solicitor Verrilli promised he would not raise any issues pertaining to racial or ethnic profiling, thus, derailing claims of profiling of Hispanic citizens and noncitizens, alike.
The courtroom, filled to capacity with interested parties representing every viewpoint, watched as Justice Antonin Scalia berated Solicitor General Verrilli for ignoring Arizona’s desire to protect its own borders. Solicitor Verrilli haplessly repeated the government’s supremacy argument to an unimpressed bench.
At one point, Justice Sonia Sotomayor asked Solicitor Verrilli “do you have any other argument;” this one is not working. To which, Solicitor Verrilli added concerns about how any state law detaining foreign nationals would interfere with America’s foreign relations policies.
A dim light shone around the issue of detainment. Justice Sotomayor expressed concern over the time a detainee would be held awaiting an INS determination. Justice Stephen Breyer presented his brand of hypotheticals around detainment with little result from Solicitor Verrilli. Justice Elena Kagen was absent. As Solicitor General, she brought the initial case against Arizona. Justice Anthony Kennedy, the swing vote, swung toward upholding the law. And, Justice Clarence Thomas simply rocked in his chair.
When asked repeatedly by Justice Scalia, “Why can’t a state protect its own borders?” Solicitor General Verrilli seemed stumped by the rejection of his supremacy arguments. Only then did Solicitor Verrilli raise the ethnic profiling issue as well as the harshness of detainment for suspected minor crimes. Emboldened, Mr. Clement reminded the Court of its recent decision allowing strip searching of detainees suspected of nonviolent infractions.
Thus, a local officer stops a person for reckless driving. Deciding the driver looks like an illegal immigrant, the officer asks for proof of citizenship. None is available. The driver is frisked, taken into custody, and strip searched. A call is made to the Immigration and Naturalization Service (INS) to determine immigration status. A response from the federal government could take hours or days.
Arizona enacted this law for Hispanics. However, illegal immigrants come from Europe through our Canadian border. Tourists from Asia intentionally overstay their visas. Africans seeking political asylum, a lengthy process, are without legal status awaiting a determination. In a nation of immigrants, local police would be burdened with deciding who looks illegal; police already facing charges of racial profiling.
In this chilling scenario by Justice Sotomayor, an American citizen, entering the park after hours, jogging, without a wallet, has no proof of status. There is no American citizen database. No national identification card.
This American citizen can be detained, taken to the precinct, and strip searched while the local police make a call to INS. Although intended only for those immigrants tempest-tost desperate to seek these teeming shores, if upheld, Arizona’s law can eventually land at your golden door.
Gloria J. Browne-Marshall, an Associate Professor of Constitutional Law at John Jay College in New York City, is author of “Race, Law, and American Society: 1607 to Present” and “The U.S. Constitution: An African-American Context,” and a journalist covering the U.S. Supreme Court.
