U.S. Supreme Court Ruling: SB 1070 – Legal

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ASU law professors Paul Bender and Carissa Hessick and immigration attorney Regina Jefferies provide legal analysis of the Supreme Court ruling on SB 1070. Plus, State Representative John Kavanagh and former state lawmakers/political consultant John Loredo talk about the opinion and the politics of enforcing SB 1070 moving forward.

Ted Simons: Good evening and welcome to "Arizona Horizon." I'm Ted Simons. The United States Supreme Court today upheld the most controversial section of Arizona's immigration law, Senate Bill 1070. That section requires police to make a reasonable attempt to determine the immigration status of someone who has been stopped, detained, or arrested, when the police have reason to believe that the person is in the country illegally. But the court struck down three other major provisions of S.B. 1070. In a moment, we will discuss the court's action with three legal experts, but first, reaction from governor Jan Brewer, who claimed a court victory with today's ruling.

Jan Brewer: So today is a day when the key components of our efforts to protect the citizens of Arizona, to take up the fight against illegal immigration, in a balance -- balanced and constitutional way has unanimously been vindicated by the highest court of the land. The heart of Senate bill 1070 has been proven to be constitutional. Arizonans and every other state's inherent authority to protect and defend its people has been upheld.

Ted Simons: Here now to give us a legal analysis of the Supreme Court's ruling are Arizona State University law professors Paul Bender and Carissa Hessick. Also joining us is Regina Jefferies, chair of the Arizona Chapter of the American Immigration Lawyers Association. It is good to have you all here. Thanks for joining us. Let's get some initial impressions now.

Paul Bender: The court did not uphold what governor brewer refers to as the core provision. It didn't strike it down. It said it would not strike it down on its face but it said that in order for it to be constitutional, it would have to be construed by the state to basically do nothing. So this is not a vindication of Arizona's policy. This is a refutation of Arizona's policy. This statute was passed in order to get illegal immigrants out of Arizona, and the court held that states cannot do that. States have no constitutional authority to remove people from the state because they're illegal.

Ted Simons: Thoughts?

Carissa Hessick: I'll add. I know that the action that governor brewer was talking about was the one that probably captured public attention most but from a legal perspective, it was the other parts of the law that were pushing the envelope much, much further. The part about asking people about their immigration status was a minor change legally, whereas the provisions about employment, the provisions about registration, failure to carry registration documents, creating a new state crime, these were the really novel legal issues presented by S.B. 1070, and there the federal government had a resounding success.

Ted Simons: Thoughts?

Regina Jefferies: I would completely agree with that. And from a practical perspective, as well. We can see that this isn't going to really have much of a change, because secured communities is already in operation in many of the jails in Arizona. People are already being detained for other crimes that they have committed. So people aren't going to be detained basically for being in the country without permission.

Ted Simons: Let's start with the one that's got everyone's attention because the one that was not struck down, as you mentioned. Who wrote the opinion and what was the court's reasoning?

Paul Bender: Justice Kennedy wrote the opinion and the court's reasoning with that one was that as long as the state merely communicates with the federal government and asks them hey, we have somebody here, are they illegal? There's nothing wrong with that. That's to be encouraged. But the state may not detain anybody for a period of time longer because they think they're illegal. They can only detain them during the period of time when they are detaining them for the crime they were arrested for, because this statute does not -- it would be unconstitutional for a state to arrest somebody because they think they're illegal. But I think the court is very clear that you should check with ice about their status, but you may not hold the person because you think they're illegal. You have to let them go if you would let them go if they were not illegal.

Ted Simons: And it sounds like justice Kennedy suggested that if you hold them longer, we would be interested in seeing that again.

Carissa Hessick: That's right. They signaled that if that were to happen, that an as-applied challenge would be appropriate and the courts would look at it at that point and they specifically said they weren't deciding that issue today. They were leaving it for another day. What they really did is they said look, if the state interprets this law very narrowly and officers enforce it very carefully, then we don't think there's a preemption issue. If the state interprets it broadly or officers are detaining much, much longer, then bring challenges once those things have started to happen.

Ted Simons: From a practical standpoint, how narrow can the state enforce this?

Regina Jefferies: Essentially what the state will be doing is what they're already doing. If they've stopped someone for a dui, for example, they're already going to have an independent reason to detain that person because they've already committed a crime. They're going to check the immigration status of that person. If the person is here unlawfully, ICE will place a hold and decide to take the person or not. With the Supreme Court decision, that's not going to change. It's not going to give them an independent reason to stop someone who's jaywalking necessarily and ask them if they're in the country illegally and detain them for a long period of time.

Paul Bender: Important language in that part of the opinion is this was from Kennedy's opinion, it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision. The court is holding that states may not enforce federal immigration law, except under federal direction and supervision. It can't do it on their own.

Ted Simons: This one may have a life in the future as we talked about once certain aspects of the law are enforced. You mentioned when I asked for your thoughts that you didn't think this was the most important factor here as far as what the court did today. Talk to us about that.

Carissa Hessick: From a legal perspective, when S.B. 1070 was passed, I think lawyers reacted differently to it than the general public did and that's because there were two big arguments being made that are sort of really novel and new. One argument was that states can feel free to enact whatever sort of laws that they want as long as they mirror federal law, the mirror image theory was a big argument behind some of the S.B. 1070 provisions, including the registration documents provision. Another argument that was made was look, you can't conflict with federal law as long as you're following the same principles as Congress and so here when we're making it a crime to seek employment, Congress wants to deter employment by people who are here illegally so we're acting with those same goals in mind so that doesn't create a conflict, that's not preempted. The court rejected both of those arguments, at least in this context right? They rejected the mirror image theory when it came to the registration documents, and they rejected the whole the policy of Congress argument. That's a big deal for those people who were looking to expand the role of the states when it came to immigration.

Ted Simons: Was that a surprise to you?

Regina Jefferies: To me, it wasn't a big surprise and I'll tell you, because particularly the registration provision and also, the other provisions that you're talking about, those are extremely complex areas of federal law that even regular practitioners have a hard time following. For example, the decision as to whether or not someone might be removable for a removable offense, that's a decision that an immigration judge makes after many arguments. It's not a decision that a police officer on the street can make while he's conducting a traffic stop.

Ted Simons: And as far as the three that were struck down here, state crime for immigrant not to be carrying papers correct?

Paul Bender: That's unconstitutional to make that a state crime.

Ted Simons: Yes, the idea that it's a straight state crime for someone to look for or accept work.

Paul bender: That's unconstitutional. Congress has said states may not do that.

Ted Simons: And what you were referring to, this warrantless thing where you may have done something somewhere.

Paul Bender: You arrest somebody because you think they're removable, and again, states are not allowed independently to enforce immigration law. That's for the federal government. They can only do it under the supervision and direction of the federal government. I mean, that's the really important part because the state's been saying we can enforce federal immigration law as long as we enforce the law and what the court said is the law is not just what's written, it's the way it's enforced, and the way immigration law is enforced has got to be completely in the hands of the federal government.

Ted Simons: So basically, you can work with, you can't work independent.

Carissa Hessick: That's right. One of the big arguments that the state was making in this case that Arizona was making was they said look, federal law is different than federal policy. And we only have to worry about federal law, we don't have to worry about the fact that a particular presidential administration has different enforcement priorities. And there's quite a bit of language in this opinion that said Arizona, you're wrong. The enforcement priorities of the federal government are part of federal law.

Ted Simons: What did you read in the dissent opinions?

Carissa Hessick: I thought they were fascinating, three very different opinions. One really broad, historical opinion by justice Scalia, one very narrow, technical language, textual opinion by justice Thomas and justice Alito agreed with the majority that the registration documents provision was preempted and couldn't be included.

Ted Simons: As far as what you read as far as the dissenting opinions, it was interesting that Scalia came down pretty tough on this.

Paul Bender: It's not unusual.

Ted Simons: He did it anyway. Talk to us about it.

Paul Bender: It's interesting because governor brewer says this was a vindication of Arizona. Scalia says that the result of this decision is to deprive states of what most would consider the defining characteristics of its sovereignty. How you can say that a decision that defines you of your sovereignty is a victory?

Ted Simons: He also said that to say that Arizona contradicts federal immigration law by enforcing applications of federal immigration law that the president declines to enforce, he says it boggles the mind.

Regina Jefferies: Well, actually I would take issue with that as well as I'm sure professor Bender or anyone here would. To that point, the registration provision is a perfect example of this because the registration provision of federal law has not been updated for many, many years. Some of the documents that are included on there you no longer receive. Many types of immigrants who are here legally don't receive documents that are necessarily on that list, so this is just one example of many where Arizona's arguing that they mirror federal law but, in fact, it does not necessarily mirror federal law because federal law on immigration anyway is much more than just the statute. It's also policy decisions, enforcement.

Paul Bender: That's the important thing and the court holds that that policy preempts state law. It's not just the statute. Federal policy preempts the states. So that's a really important part of it.

Ted Simons: The injunction against the provision, though, is still in effect until what happens?

Carissa Hessick: Well, procedurally and professor Bender knows more, the case has to get returned to the ninth circuit and the ninth circuit has to return it back to judge Bolton until she can vacate or change it to get rid of the injunction for section 2B.

Ted Simons: Nothing changes until all of those machinations occur correct?

Carissa Hessick: That's right.

Ted Simons: So how long before judge Bolton decides --

Paul Bender: It won't be very long. A month or two. It won't make any difference because S.B. 1070 as construed by the Supreme Court or the way the Supreme Court says it has to be construed to be constitutional doesn't change anything. The question in my mind is when judge Bolton removes the injunction from enforcing it at all, will she repeat what justice Kennedy says about how narrow the provision has to be interpreted? To try to head off the possibility -- because it's happened in Arizona in the past, of some law enforcement officials here not paying attention to what the Supreme Court says.

Ted Simons: So what changes? What are you telling your clients, what are you telling people that ask you for advice? What changed from yesterday until today, what will change once judge Bolton makes her remarks?

Regina Jefferies: Practically speak, not a whole lot has changed. A lot of this has been happening. I've seen lots of people pulled over who are booked into a jail and as part of security communities, their information is run with ICE and ICE makes a decision whether or not to detain them. At the same time, people do continue to have the same rights as previously, as far as answering questions with police officers and things of that nature. But to be honest, as professor Bender said, not much has really changed here.

Ted Simons: So last question, I've got to get a yes or no because we're running out of time. Is this the end of S.B. 1070 in the courts?

Carissa Hessick: No.

Ted Simons: What do you think?

Regina Jefferies: No.

Ted Simons: Not at all.

Paul Bender: No.

Ted Simons: All right, good. You guys following it, great --

Carissa Hessick: Unanimous decision.

Ted Simons: A unanimous decision. Good to have you all here. Thank you all. Great stuff.

Paul Bender:Professor, ASU; Carissa Hessick:Professor, ASU; Regina Jefferies:Chair, Arizona chapter, American Immigration Lawyers Association;

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