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

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.

Transcript:

Ted Simons: We'll take a look at today's supreme court decision from a more political perspective, but first, more reaction from the governor and Phoenix city leaders.

Jan Brewer: This is the day that we have been waiting for. And make no mistake, Arizona is ready. We know the eyes of the world will be upon us. We know the critics will be watching and waiting, hoping for another opportunity to continue their legal assault against our state. But I have faith in our law enforcement, our brave men and women in uniform have been trained so they are able to enforce this law efficiently, effectively, and in harmony with the Constitution. Civil rights will be protected. Racial profiling will not be tolerated.

Daniel Garcia: The phoenix police department will enforce all laws, including Senate bill 1070 in a manner to ensure equal justice, that's provided to every person, irrespective of race, color or national origin. The Phoenix police department will not tolerate any violations of any person's civil rights. In relation to the community having a voice, I want the citizens of Phoenix to have a voice. This includes everyone, all individuals. The Phoenix police department will continue to concentrate its resources on crime suppression and violent crimes and property crimes. We have to enforce those decisions.

Greg Stanton: Today's decision by the Supreme Court is a reminder we can't have a patchwork of state laws on immigration around the country. We need Congress to act now, to act now on comprehensive immigration reform, including passage of the dream act, which is very important to this community in light of our demographic situation, it will help our economy. We also need continued support for strong border security.

Ted Simons: And joining us now with their perspective on today's Supreme Court decision is one of the strongest supporters of the bill, Arizona Republican representative John Kavanagh. Also here is former Democratic state lawmaker John Loredo, who opposes the measure. good to have you both here. Thanks for joining us.

Both: Thank you.

Ted Simons: I tell you, judging from the initial reaction and even, you know, as the day wore on, it sounds like everyone won. It's like a soccer tournament for 8-year-olds, we all go home with a trophy here?

John Kavanagh: In reality, this was a split decision. Before we ever got to court, three provisions of S.B. 1070, the harboring and transporting fugitives and others were declared constitutional. So we went in with three victories. Today, you had three defeats for my side. We lost three of the provisions, but we won the heart and soul of S.B. 1070. We won the section about stopping and questioning people who are suspected to be here illegally. That was always the major issue. That's what everybody spoke about. That was the big win.

Ted Simons: Big win?

John Loredo: No. I think it was a pretty stunning defeat. The reality is that without the other sections of law included, that section 2 piece that was ruled to be unlawfully enjoined is basic meaningless.

Ted Simons: What do you make of that? We just heard some legal analysis that says the same thing, that this is all wonderful, except it doesn't change anything.

John Kavanagh: Well, it's meaningless because President Obama has adopted a policy of not enforcing the federal immigration law to the extent that it should be. His policy is if you haven't committed a serious crime, that they're not going to pick up these people. We put this law together two years ago. This was the third part of a three-pronged attack against illegal immigration. We took away the benefits, we took the employment away, and then we wanted to increase enforcement by having state and local police aid the police. And that was the heart and soul of the bill. The three sections that were declared unconstitutional today created certain state crimes for being here illegally. That was put in because we predicted that at some point, the Obama administration might simply say we don't care if they're illegal, we are not going to pick them up. We tried to make that a state law so we could hold them. We didn't win on that one but we still have the stop and question.

Ted Simons: Heart and soul of S.B. 1070 vindicated.

John Loredo: Absolutely not. Look, the reality is the Obama administration is trying to prioritize where valuable resources are placed. And those valuable resources are placed on criminals, serious criminals that are doing serious damage to our community. What they're saying is that we're not just going to go spend critical resources, picking up gardeners and cooks and all of those things. We're going after serious criminals. 1070 was not about law enforcement. 1070 was political. It was politics.

Ted Simons: Well, if it was politics, and the goal was attrition through enforcement, something along make it so difficult for those folks that they will leave on their own, doesn't this, the one that was not struck down, doesn't that make it more difficult for folks?

John Loredo: Not necessarily. Because look, the reality is that unless a person has committed some type of another crime, you know, they can't just be racially profiled and questioned. They have to have committed another crime and if they did, 1070 has placed no part in whether or not they're prosecuted for the other crime. They will still be prosecuted for that crime.

John Kavanagh: First of all, they don't have to commit another crime to have the stop and question provision kick in. They have to be lawfully stopped for any reason, which could be a noncriminal traffic violation but to get to the politics, the politics of the Obama administration. This is an administration that basically, doesn't pursue the dream act, which everybody is for, or most people are for. It then deports a record number of people, and suddenly when you're on the eve of the election and they seem to be losing the Hispanic vote, they do a complete 180 to the point where now, if they pick up an illegal with a criminal record, they'll let them stay as long as it's not a serious criminal record. That's the politics.

Ted Simons: All politics I'm hearing.

John Loredo: Absolutely. Look, you have to remember this bill was written and pushed by the private prison industry that literally stuffs taxpayers dollars into their pockets for every head that that we put into a private prison. That's what 1070 was about. It was about enriching private prisons. It wasn't about law enforcement, it wasn't about anything other than politics and money.

Ted Simons: We've heard -- [ Overlapping Speakers ]

John Kavanagh: You have to save that theory for the x-files rerun that will be on later.

John Loredo: It's a proven fact.

John Kavanagh: By whom? [ Overlapping Speakers ] I was there when we said why do we want to do this? We want to do this because the federal government was not adequately enforcing federal immigration law in this country and we wanted to get state and local police officers into the mix to help.

John Loredo: This bill was written and approved at the special interest group ALEC's committee. The chair of the committee was private prisons. They wrote this and pushed this out. This is about taxpayer's money going to prisons.

Ted Simons: I know in the past, Republicans have been very strong against the idea of judicial activism and seeing what sticks. Isn't what Arizona did here? Critics are saying that's exactly what happened here, you lost, but you at least and I'm saying you meaning the Republicans for the most part, were hoping for the conservative court to be friendly.

John Kavanagh: I don't think we lost. Eight provisions, three of them initially were found constitutional. Today, three were unconstitutional, one passed, if you want to do the numbers, we're up four, and down three.

Ted Simons: I'm talking about three out of four today with the Supreme Court. That's not going to get you to the hall of fame.

John Kavanagh: First of all, we have more passed than were failed. We went in with three victories. It's four victories to three failures, and the one victory was the stopping and questioning, which the opponents made the entire argument up until today when we won it.

Ted Simons: What about that idea? This was a big deal until today, and now it's not a pig deal anymore?

John Loredo: The big deal is the Supreme Court ruled that states cannot create their own immigration law. That precedent stands forever now. And it shoots down any state that tries to create their own federal immigration law. They cannot do it. And this was a stunning defeat for the proponents of these types of laws because they're not going to be able to do that anymore. And also, I've got to say, the reality also is that this challenge was based on federal preemption. It was not based on anything else. The civil rights issue, to challenge section 2, is already in the court system and it will be challenged at the Supreme Court.

Ted Simons: I was going to bring that up. The ACLU, the class action business against racial discrimination and racial profiling, these sorts of things, that story hasn't been told yet.

John Kavanagh: That's because there has been no record gather. You can't do an as-applied challenge until you apply the law. What is the section for questioning? We took a 1960s, U.S. Supreme Court created tool called stop and question and we simply applied it to illegal presence in this country. We went to retired board patrol people and had them put together the lesson plans so that the same criteria used by the border patrol to stop and question people, reasonable suspicion, our own police use. If that's illegal, then the border patrol has been breaking the law for decades.

Ted Simons: Mirroring federal enforcement? The courts seem to say today you can't do that, but does that make sense?

John Loredo: What the court said is that how section 2 is applied on the street is what matters. Whether or not it's applied lawfully, that's the issue and that's the issue that's already making its way through the court system.

Ted Simons: Alright, we have to stop it right there. Good discussion gentlemen, good to have you here.

Ted Simons: Tuesday on "Arizona Horizon," learn about a measure that would keep a one-cent state sales tax designed to help education and job creation. And find out what's being done to make the valley a better place to travel by bicycle. That's Tuesday at 5:30 and 10:00 right here on "Arizona Horizon." That is it for now. I'm Ted Simons. Thank you so much for joining us. You have a great evening.