The Supreme Court Considers
Arizona v. United States
Welcome!
Your presenters will be with you
in a few minutes.
April 27, 2012
Presenters
Karen Siciliano Lucas, Esq.
Advocacy Attorney
State and Local Initiatives Project
Catholic Legal Immigration Network, Inc.
(CLINIC)
Sara Jane Ibrahim, Esq.
Immigration Policy Advisor
Migration and Refugee Services
U.S. Conference of Catholic Bishops
(USCCB)
How did SB 1070 get to the Supreme Court?
In 2010, Arizona enacted
―SB 1070‖
“… 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.”
How did SB 1070 get to the Supreme Court?
Arizona v.
U.S.
Arizona loses its
appeal
U.S. successfully
blocks parts
U.S. v. Arizona
What the Supreme Court case IS: 4 provisions
• 2(B): Police must check immigration status when they suspect
that someone they have lawfully stopped is undocumented
• 6: Police may arrest someone without a warrant if they have
cause to believe that they have committed a deportable offense
• 3: People who fail to carry federal registration papers are guilty
of a state crime
• 5: People who ask for or accept work are guilty of a state crime
if they are unauthorized
What the Supreme Court case ISN’T: other issues
• People who harbor or transport undocumented individuals
are guilty of a state crime, if they know or disregard their status
• People who rent housing to undocumented individuals are
guilty of a state crime, if they know or disregard their status
• Undocumented individuals who try to get license plates or
non-driver IDs are guilty of a felony
• Schools are required to ask the immigration status of newly
enrolling students and their parents
What the Supreme Court case ISN’T: other claims
Fourth Amendment
First Amendment
Equal Protection
14th Amendment
Friendly House v. Whiting continues …
What this IS: Supremacy of Federal Law
Article 6: Federal law ―shall be the
supreme Law of the Land‖
When does the federal government have
exclusive power over immigration?
Federal
The Supreme Court has said that the Constitution gives Congress
exclusive power to ―regulate immigration.‖
A ―direct regulation of immigration‖ is any law that determines:
(1) who should be admitted into the country; or
(2) the conditions under which a legal entrant may remain.
DeCanas v. Bica, 424 U.S. 351, 355 (1976)
The Supremacy Clause: What is ―preemption‖?
Federal
State
Article 6: Generally, states are prevented (or ―preempted‖) from passing laws:
• in a way that is expressly prohibited by Congress;
• in an area of law where Congress has thoroughly ―occupied the field‖; or
• in a way that obstructs the purposes of Congress (―conflict preemption‖)
Congress = The Immigration and Nationality Act (INA)
How does Arizona see it?
Federal
State
States do have a certain amount of room to regulate the behavior of
noncitizens. Not every state law that deals with noncitizens will be
trumped by federal law. However, every federal court that has considered
the argument Arizona makes here – that a state has inherent power to
independently enforce federal civil as well as criminal immigration law –
has disagreed with this premise.
Importantly, the INA says that states may ―cooperate‖ in immigration
enforcement.
The Battle Royale
Federal power to make
immigration law
State power to protect
citizens & to help
enforce federal law
Is Arizona cooperating with federal
enforcement OR confronting the federal
government with its own immigration policy?
USCCB Files Amicus Brief in SB 1070 Case
What is an amicus brief?
• An amicus curiae brief is a “friend of the court”
submission which addresses the underlying or related legal
and policy issues involved in a case before the court.
• Such a brief can be submitted by any entity with an
interest in the outcome of a case or will be impacted by the
outcome
• It can point out the ramifications of a specific outcome on
society, the parties involved, or individuals or groups affected.
Why did USCCB submit an amicus brief?
• Understanding the importance of the case of Arizona v. United
States on the future of immigration in the U.S. and on its
ministry, the Catholic Church, through the U.S. Conference of
Catholic Bishops (USCCB), submitted an amicus to the Supreme
Court on March 26, 2012.
• The Conference advocates and promotes the pastoral teachings of
the U.S. Catholic Bishops in diverse areas of the nation’s life
including the care for immigrants and refugees.
• When lawsuits have touched upon central Roman Catholic tenets,
the Conference has filed amicus curiae briefs to make its view clear,
particularly in the Supreme Court.
What did the USCCB brief say?
Federal Law Preempts SB 1070
Family Unity & Human Dignity
Religious Liberty
What does the brief say? – Federal Preemption
―S.B. 1070 —
by setting ―attrition‖ of
undocumented immigrants
―through enforcement‖ as the sole
goal —
departs from the federal balanced
judgment that takes into account
family unity and humanitarian
factors, among others. (p. 23-24)
What does the brief say? – Family Unity
―The institution of the family is deeply
rooted in this nation, and receives
constitutional protection.
Family unity is a goal shared by
many, including the Catholic Church,
which views families as the building
blocks of society and recognizes the
special need that immigrants have
for their families.‖ (p. 7)
What does the brief say? – Religious Liberty
―The Catholic Church, like other religious
institutions, believes that it has a moral and
religious duty to help all in need.
This duty of service extends to immigrants,
which has led the Church to create institutions
designed specifically to assist them.
S.B. 1070 and many state immigration laws
like it threaten this Catholic mission to provide
food, shelter, and other care to all.‖ (p. 9)
April 25 – Oral Arguments
April 25 – Rally at SC
April 24 – Senate Hearing
April 23 – 25 – IIC Vigils
Timeline Highlights
March 26, 2012 USCCB Submitted Amicus Brief in U.S. v. AZ
April 24, 2012
Senate Immigration Subcommittee Hearing
• USCCB submitted testimony for Senate hearing
• USCCB released interfaith principles letter
April 25, 2012
Supreme Court Heard Oral Arguments
• Catholic Organizations part of Interfaith Immigration Coalition Vigils
• Cardinal Mahony spoke at press conference on Supreme Court steps
• Article by Archbishop Gomez posted in Washington Post online
June 2012
Anticipated release of Supreme Court Decision
Resources on USCCB Brief & Interfaith Letter
• Q&A about the USCCB brief: http://bit.ly/ITN44s
• Excerpts from the brief: http://bit.ly/KhnS7q
• Full Text of brief: http://bit.ly/Hi7VPQ
• Press Release and Links to Interfaith Letter and
Congressional Testimony: http://bit.ly/JqPeZl
• Washington Post online article by Archbishop Gomez:
http://wapo.st/JxdyOb
What did the Ninth Circuit hold?
Congress, through the INA, intended state officers to aid in immigration
enforcement only under the close supervision of the U.S. Attorney General.
2(B): substitutes Arizona’s policy priorities for enforcement (to the max) for the
policy priorities of the Executive Branch (balanced) and interferes with the
ability of the federal government to stick to its priorities with limited resources.
We can’t have 50 states pursuing 50 different immigration policies; there would
be foreign relations consequences.
3: The INA already creates a comprehensive scheme for noncitizen
registration, and nothing in the INA’s registration provisions indicates that
Congress intended states to participate.
5: Within the INA, Congress made the deliberate decision NOT to criminalize
unauthorized work by the worker, only the employer’s decision to employ.
6: gives much broader power than Congress did in the INA: ―we simply are not
persuaded that Arizona has the authority to unilaterally transform state and
local law enforcement officers into a state-controlled DHS force to carry out its
declared policy of attrition.‖
Central concerns at oral arguments
• Justices focused on Section 2(B): ―reasonable suspicion‖
• Justices generally seemed skeptical of U.S. argument on
2(B)
• Justices did not engage the implications of the ―attrition
through enforcement‖ policy
•Justices correctly reiterated that racial profiling is NOT a
consideration in this case but also discussed several
hypotheticals about the practical implications of 2(B)
Q’s the Supreme Court’s decision may address
• When can a state pass a law that mirrors federal law?
• Do states have any inherent authority to arrest people for
violations of federal immigration law?
• Do states have any authority to discourage unlawfully present
persons from residing within their borders?
• Is 2(B) properly understood as simply notifying the federal
government whenever police officers encounter someone who
is unlawfully present? If so, what’s wrong with that?
Four possible outcomes
1.
All 4 provisions preempted
2.
All 4 provisions permitted
3.
Some of 4 preempted
4.
4-4 Justices split
Which other states’ laws are being litigated?
Which states have similar provisions?
• 2(B): Police must check immigration status when they suspect that
someone they have lawfully stopped is undocumented
AL,* GA, SC, UT
• 6: Police may arrest someone without a warrant if they have cause
to believe that they are deportable
GA, IN, UT
• 3: People who fail to carry federal registration papers are guilty of
a state crime
AL, SC
• 5: People who ask for or accept work are guilty of a state crime if
they are not authorized to work
AL
What is the current context in the states?
• The Maricopa County Sheriff’s Office, led by Sheriff Joe Arpaio, was
found by U.S. Department of Justice to have committed widespread
civil rights violations in the course of immigration enforcement; DOJ is
now investigating 432 cases of sexual assault and child molestation
improperly investigated while the Sheriff focused on immigration.
• Another law enacted by Arizona in 2010 targeted ethnic studies
classes in public schools; in 2012, the Tuscon Unified School District
suspended its Mexican-American studies program and banned books.
• Alabama is considering a law targeting immigration lawyers, making it
extremely difficult to for these attorneys to keep up their licenses.
• Alabama is considering a law to publish on the state’s website the
name of every arrested undocumented immigrant who appears in court
and whether they were detained, released, or transferred to ICE.
• Tennessee is considering a law to keep foreign nationals away from
public charter schools as teachers, administrators, and funders.
The take-away, and what can you do?
In summary:
•Even though several Justices seemed skeptical of some of the U.S.
government’s points, oral arguments do not always predict how the
Supreme Court will rule.
•Even if the Supreme Court permits Arizona to keep one or more of
these provisions, there is no guarantee they will EVER go into effect
because they will be challenged on other grounds. It’s a long road!
•Remember: just because your state CAN pass a law doesn’t mean
your state SHOULD pass a law – your advocacy work is far from over
even if some of these laws are determined to be constitutional.
• Federal/state immigration enforcement partnerships like Secure
Communities currently make bad state enforcement laws WORSE.
Find out exactly how your local law enforcement partners with
Immigration and Customs Enforcement (ICE).
Resources
Justice for Immigrants Campaign
Contact: Tony Cube, [email protected]
http://www.justiceforimmigrants.org
Resources
CLINIC’s State & Local Map
http://cliniclegal.org/resources/state_local
Questions?
twitter.com/cliniclegal
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