Most (but not all) of SB 1070 declared unconstitutional.

  Most of SB 1070 declared unconstitutional.

But the Supremes said that SB 1070 can require "an officer to make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there's reasonable suspicion that person is in the country illegally"

And as any defense attorney will tell you that you should always take the 5th and refuse to answer any police questions. And if you don't answer police questions it will make it much harder for them to prove you are in Arizona illegally.


Arizona immigration law: Supreme Court upholds key portion of Senate Bill 1070

Three other parts of controversial immigration law ruled unconstitutional

by Alia Beard Rau - Jun. 25, 2012 11:15 AM

The Republic |

The U.S. Supreme Court has ruled that one key part of the Arizona immigration law, known as Senate Bill 1070, is constitutional, paving the way for it to go into effect. Three other portions were deemed unconstitutional in a 5-3 opinion.

The part ruled constitutional is among the most controversial of the law's provisions. It requires an officer to make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there's reasonable suspicion that person is in the country illegally.

The three parts ruled unconstitutional make it a state crime for an immigrant not to be carrying papers, allow for warrant-less arrest in some situations and forbid an illegal immigrant from working in Arizona.

The long-awaited decision was a partial victory for Gov. Jan Brewer and for President Barack Obama, who sued the state of Arizona to keep the law from taking effect. By striking down the portions they did, justices said states could not overstep the federal government's immigration-enforcement authority. But by upholding the portion it did, the court said it was proper for states to partner with the federal government in immigration enforcement.

Despite the Supreme Court's ruling, the injunction blocking the provision from taking effect is still in place. The case now goes back to the lower courts. Authorities cannot begin enforcing the provision upheld by the Supreme Court until U.S. District Court Judge Susan Bolton lifts the injunction she issued in 2010. It is unclear how long that process could take.

Once it does take effect, the federal government will not automatically accept for deportation every person arrested under SB 1070 in Arizona, federal immigration officials said Monday.

Immigration and Customs Enforcement said it will not take action when receiving calls from local police unless the person arrested meet priorities for deportation. ICE's priorities include illegal immigrants who have been convicted of serious crimes and those who pose a threat to national security.

"ICE will not issue detainers unless they meet priorities," a Department of Homeland Security senior official said.

Justice Anthony Kennedy wrote the majority opinion. He said it was improper for the lower courts to enjoin Section 2, which requires law enforcement to check immigration status, "without some showing that (the section's) enforcement in fact conflicts with federal immigration law and its objectives."

"The mandatory nature of the status checks does not interfere with the federal immigration scheme," he wrote. "The federal scheme thus leaves room for a policy requiring state officials to contact ICE as a routine matter."

However, Kennedy's opinion does set the state up for future possible lawsuits. He wrote that if an individual is detained under SB 1070 for longer than they would have been before just to check their legal status, that would be a constitutional problem.

"This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect," he wrote.

Justices John Roberts, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor agreed with Kennedy's opinion. Justices Antonin Scalia, Clarence Thomas and Samuel Alito filed opinions partly agreeing and partly disagreeing.

Thomas and Scalia in their dissents opined that all of SB 1070 should be permitted to go into effect.

"What I do fear -- and what Arizona and the States that support it fear -- is that 'federal policies' of nonenforcement will leave the States helpless before those evil effects of illegal immigration," Scalia wrote. "Arizona bears the brunt of the country's illegal immigration problem. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so."

Alito split with both groups, arguing that the majority was correct to allow the portion requiring law enforcement to check immigration status and to not allow the portion requiring that individuals show paperwork. But he said the portions forbidding illegal immigrants from working in Arizona and allowing for warrantless arrests in some cases should be allowed to go into effect.

The ruling, which comes little more than a week after Obama's administration modified its immigration-enforcement policy, is the culmination of a two-year battle.

The Arizona Legislature passed the measure and Brewer signed it into law in 2010, setting off an international political firestorm.

As they reacted to the divided opinion Monday morning, those on both sides of the issue claimed victory.

Brewer on Monday called the opinion "a victory for the rule of law."

"It is also a victory for the 10th Amendment and all Americans who believe in the inherent right and responsibility of states to defend their citizens," Brewer said in a news release. "After more than two years of legal challenges, the heart of SB 1070 can now be implemented in accordance with the U.S. Constitution."

She added that law enforcement will be held accountable should the law "be misused in a fashion that violates an individual's civil rights."

"We must use this new tool wisely, and fight for our safety with the honor Arizona deserves," she said.

Obama in a statement said he was pleased that the court struck down key provisions.

"What this decision makes unmistakably clear is that Congress must act on comprehensive immigration reform," he said. "A patchwork of state laws is not a solution to our broken immigration system - it's part of the problem."

Obama said he is concerned about the portion of the law the high court will allow to go into effect.

"No American should ever live under a cloud of suspicion just because of what they look like," he said in his statement. "Going forward, we must ensure that Arizona law enforcement officials do not enforce this law in a manner that undermines the civil rights of Americans, as the Court's decision recognizes."

In a written statement, Senate Minority Leader David Schapira, D-Tempe, said the ruling sent two messages: "(T)hat states cannot pass policies that undermine federal law and that Congress must act on comprehensive reform in order to address this issue and avoid these kinds of legal conflicts."

"We cannot begin to honestly solve the issue of illegal immigration until those in Congress are willing to have meaningful discussions on comprehensive reform," he said.

Rep. John Kavanagh, R-Fountain Hills, who along with former Sen. Russell Pearce sponsored the bill in the Legislature, said he was elated that the law's key provision was found to be constitutional.

He acknowledged the section is open to future legal challenge. But that doesn't signal the section will be struck down, he said.

Sen. Steve Gallardo, D-Phoenix, has been one of the law's most vocal opponents.

"When it comes right down to it, I think the Supreme Court has really sent us a mixed messages," he said. "The big question now is law enforcement. This is not the last time 1070 will be before the Supreme Court."

U.S. Senators Jon Kyl and John McCain, both Republicans, issued a joint statement on the opinion.

"The Arizona law was born out of the state's frustration with the burdens that illegal immigration and continued drug smuggling impose on its schools, hospitals, criminal justice system and fragile desert environment, and an administration that chooses to set enforcement policies based on a political agenda, not the laws as written by Congress," according to the statement. "We will continue our efforts on behalf of the citizens of Arizona to secure our southern border. We believe Arizonans are better served when state and federal officials work as partners to protect our citizens rather than as litigants in a courtroom."

U.S. Rep. David Schweikert, R-Ariz., called the ruling a victory.

"The federal government has failed my state with its inability to properly enforce immigration law," he said in a written statement. "Now Arizona, with the core of SB 1070, can implement what Washington has failed to do."

In the days prior to the law's passage and the weeks after its signing, hundreds of supporters and opponents rallied at the state Capitol.

Opponents called for a a boycott of Arizona that resulted in canceled conferences and music concerts. Supporters sent Brewer millions of dollars to help fund the law's legal defense. At one point, the governor and President Barack Obama sat down for an Oval Office chat to discuss their differences on immigration and border security. The two were not able to reach an agreement, however, and their relationship has been frosty since.

The federal government eventually sued Arizona over the immigration law.

Brewer has criticized Obama's new immigration policy as a preemptive strike against SB 1070. The policy, announced June 15, allows certain illegal immigrants under age 30 to apply to stay in the United States without fear of deportation for two years. They also could apply for a work permit. The policy, which mirrors portions of the Dream Act, does not grant legal status to undocumented immigrants.

Legal experts say the policy protects qualifying individuals who may be arrested or detained under SB 1070 by making it clear that federal officials will not pursue deportation.

Lawmakers in dozens of other states proposed -- and in five states passed -- copycat immigration-enforcement legislation.

Now, the court's decision is expected to reignite passions over immigration and affect political contests from coast to coast, from the presidential race down to local legislative districts.

The U.S. Department of Justice lawsuit was one of seven challenging Senate Bill 1070. Three are still working their way through the courts.

Bolton issued a preliminary injunction in that case, preventing four parts of the law from ever going into effect. The 9th Circuit U.S. Court of Appeals upheld her ruling and Brewer appealed the injunction to the high court.

The law, among other things, makes it a state crime to be in the country illegally and requires an officer engaged in a lawful stop, detention or arrest to, when practicable, ask about a person's legal status when reasonable suspicion exists that the person is in the U.S. illegally. It's written goal is to deter the unlawful entry and presence of illegal immigrants in Arizona through a policy of "attrition through enforcement."

Bolton ruled that immigration is the responsibility of the federal government, not individual states. As part of the U.S. Department of Justice lawsuit, she issued an injunction stopping four parts of the law: requiring a law-enforcement officer to check a person's immigration status in certain situations; making it a crime to not carry "alien-registration papers;" allowing for a warrantless arrest if there is cause to believe a person committed a crime that makes him or her removable from the U.S.; and making it a crime for illegal immigrants to work.

The key argument before the Supreme Court in April was whether Arizona has the right to enforce federal immigration laws the way it chooses.

The U.S. Department of Justice in its lawsuit argued that immigration is an issue that only the federal government can address. The state argued that SB 1070 mirrors federal law and assists the federal government in enforcement.

The Supreme Court ruling determines the future of immigration enforcement nationwide and affects laws in Alabama, Georgia, Indiana, South Carolina and Utah. It will also likely reignite passions over immigration and affect political contests from coast to coast, from the presidential race down to local legislative districts.

This is also not the end of the SB 1070 lawsuits in Arizona.

The underlying lawsuit the federal government filed challenging SB 1070, as well two other lawsuits filed against the measure, are all still awaiting trial before Bolton. Bolton will have to base future decisions in those cases on this ruling.

The high court's decision does not directly affect a separate injunction Bolton issued in one of the other lawsuits. That injunction halted the part of the law limiting day-labor activities.

Republic reporter Mary Jo Pitzl contributed to this article


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