On June 25, 2012, the U.S. Supreme Court decided Arizona v. United States. The decision struck down 3 out of 4 provisions of Arizona’s SB 1070. The 3 provisions that were struck down involved:
1. A requirement that non-citizens carry identification and subjected them to criminal penalties for failure to comply.
2. A penalty for non-citizens that work without authorization to work in the United States.
3. Authorization of state and local police to make warrantless arrests of individuals who were believed to be removable.
These provisions were struck down because they deemed to be “preempted” by federal law. Certain areas of law, like immigration, are deemed to be the sole responsibility of the federal government, so that the states may not legislate them.
The fourth provision involved authorization of the police to request papers of individuals that they believe to be undocumented. This has been referred to as the “show me your papers” provision.” Arizona Governor Jan Brewer has been claiming victory because this provision was not struck down. I don’t view the Supreme Court’s decision as a victory for Governor Brewer. The Supreme Court’s decision did not expressly uphold this provision. The decision merely concluded that it was too early to determine whether this provision is proper because to do so would require a factual determination as to how the provision is applied. To me, this is not a victory for the State of Arizona. The Supreme Court merely left the battle for another day.
If there was any debate as to who won this battle, it was settled after the Supreme Court’s decision when the Department of Homeland Security announced that it was cancelling Arizona’s participation in the 287(g) program. 287(g) refers to a provision in the Immigration and Nationality Act that provides that the federal government can literally deputize state and local law enforcement officials to enforce immigration laws. One of the benefits of 287(g) is that state participants have access to federal immigration databases. By kicking Arizona out of 287(g), it no longer has direct access to the federal government’s immigration databases. As a result, when Arizona law enforcement officials arrest a suspected undocumented alien, they do not have the ability to check the federal immigration database on their own. Instead, they must call the Immigration and Custom Enforcement and will be at their whim.