SCOTUS On Arizona’s SB 1070: A Victory…If Immigration Patriots Can Make It One

Some supporters and opponents of SB 1070 have claimed the Supreme Court’s ruling was a victory. And some supporters and opponents have also claimed it was a defeat. This is to be expected, as the ruling was mixed. (There’s speculation that Justices Roberts and Kennedy went relatively weak on this to give them cover—because they intend to overturn Obamacare on Thursday!)

My view: to adapt Ben Franklin, immigration patriots have a victory—if they can make it one.

The Supreme Court unanimously upheld the most controversial aspect of the legislation: Section 2(B), which requires police to look up the immigration status of suspected illegal aliens whom they encounter in the course of law enforcement. (However, it did not preclude future litigation on the application of the law, specifically on racial profiling. While this is unfortunate, it was not unexpected.)

Additionally, the Supreme Court overturned

  • Section 3, which criminalizes at the state level the federal crime of unlawful presence.
  • Section 5(C), which creates criminal penalties illegal aliens for illegal aliens who solicit or perform jobs. (But last year the court upheld state laws criminalizing the employment of illegals).
  • Section 6, which authorizes local police to make warrantless arrests of those they believe have committed deportable offenses.

Observant readers will note that there were only two sections and two subsections that the Court actually ruled on. But there are nine Sections of SB 1070 (technically twelve, but three are rhetorical or procedural.) The district and appellate court, whose findings the Supreme Court was reviewing, did not issue injunctions against the entire bill. Thus many important parts of SB 1070, including provisions to outlaw sanctuary cities, to crack down on illegal alien gangs and human smugglers, and to strengthen already existing laws against illegal employers, were never at issue.

Thus, even if each section were equal, it is obviously wrong to state, as some news sites are reporting, that the Court struck down “three quarters of Arizona`s infamous SB 1070”—over half of the law was not even contested at the Supreme Court level.

Of course, one cannot deny that the three provisions that the court overturned would have helped fight illegal immigration on the state level.

So it is not altogether surprising that some immigration patriots are discouraged, although Judiciary Chairman Lamar Smith seemed excessively distressed. He is quoted as saying:

“Unfortunately, under this Administration, today’s ruling essentially puts an end to immigration enforcement since the states no longer can step in and fill the void created by the Obama administration.”

[Smith on Arizona Supreme Court Ruling, June 25, 2012]

Treason Lobbyists like MALDEF president Thomas A. Saenz [Email him] made pretty much the same point (except he thinks it’s a good thing):

“This outcome is a resounding victory for the Constitution as the Court majority affirms longstanding law on the breadth of exclusive federal authority in the area of immigration regulation.” Saenz called the ruling a “Resounding Defeat for Arizona “

[MALDEF Responds to Supreme Court Decision in Arizona Case, June 25, 2012]

But, while there are many parts of SB 1070, the heart of the bill has always been Section 2(B)—empowering the police. President Obama himself attacked the bill almost solely over that provision, most notably when he pretended that grandparents taking their kids to get ice cream would be victimized:

“You can imagine if you are a Hispanic American in Arizona, your great grandparents might have been there before Arizona was even a state, but now suddenly if you don’t have your papers and you took your kid out to get ice cream you’re going to be harassed—that’s something that could potentially happen. That’s not the right way to go.” [President Obama Says Arizona’s “Poorly-Conceived” Immigration Law Could Mean Hispanic-Americans Are Harassed, ABC News, April 27, 2010]

And some Treason Lobby activists are indeed furious that this is still intact. Phoenix-based Latino agitator Salvador Reza complained:

“It’s a partial victory for the Obama administration, but for the people, for the Latinos in Arizona, it’s not…it’s terrible for us. Every policeman can question you after they stop you for a traffic stop. They’re doing it on an everyday basis right now.”

[Arizona immigration decision: Activists split on split decision, Reid Epstein, Politico, June 25, 2010]

From the patriot side, Russell Pearce (whom I believe will be returned to the Arizona State Senate this fall) effectively agreed:

“I’m very happy. They upheld the most compelling piece…Section 2(b). The other sections were just icing on the cake, they were not critical, they were just nice to have” Russell Pearce: SB 1070 decision a “huge win”, By Alex Seitz-Wald, Salon.com, June 25, 2012

(Of course, in an extraordinary move, the Obama Administration has sought to nullify SCOTUS’ decision on Section 2(B) by announcing it will not actually deport illegals turned over to it under the provision. But even apart from the dubious legality of this move, I believe it will backfire. Just wait until some unfortunate American is killed by the first illegal alien caught under Section 2(B) and released by Obama—which will inevitably, and tragically, occur).

So this is why I think that, while the SCOTUS ruling is not an unambiguous victory, it could be—if immigration patriots can just build from it:

  • First, just sending a loud message that illegals are not welcome has a serious effect.

Long before SB 1070 went into effect, illegals began leaving Arizona. Pro-amnesty groups are trying to spin the Supreme Court ruling as a message to illegals that the federal government will now protect them from mean old states like Arizona. But if the illegals believe people like Phoenix agitator Salvador Reza—“it’s terrible for us”—they might well, to use Mitt Romney’s term (which he conspicuously not repeated since he won the nomination), “self-deport”

  • Secondly, states can now craft bills that will have a serious impact on illegals and be immune from litigation.

MALDEF’s Saenz said that “the decision sends a strong warning to any states or localities that have enacted or that may be considering enacting their own immigration regulation schemes.”

Bunk! States can look at this decision as a road map to how they can pass ACLU-proof legislation.

As the heroic Kris Kobach noted:

The best way to think about it is to step back and look at what the Supreme Court has done in the last two years. In May of 2011, the Supreme Court sustained Arizona’s Legal Arizona Workers Act, which made Arizona the first state in America to require all employers to use E-Verify to verify the legality of the workforce. And now the Supreme Court has upheld the central provision of SB1070. Those are really the two biggest tools in the toolbox for what a state can do. There are only three states that have done both of those things: Arizona, Alabama and South Carolina…The two biggest hammers remain within the states’ prerogative, so I think the path ahead is one in which now the other states have a very clear signal because of these two cases coming out of Arizona.

[Q&A: Kris Kobach, the Legal Mind Behind Arizona’s Immigration Law, by Adam Sorensen, Time, June 26, 2012]

Kobach is, as usual, right.

However, there is a real danger that state legislators will be swayed by propaganda by groups like MALDEF, and by pessimism from Lamar Smith, to the effect that they are now powerless to fight illegal immigration. In that case, they won’t do anything.

It may be cliché to say “perception is reality.” But when it comes to which side won the SB 1070 ruling, the cliché is right.

“Washington Watcher” [email him] is an anonymous source Inside The Beltway