Arizona may have found a sympathetic ear in the Supreme Court, when the state argued the merits of its controversial immigration law April 25.

At issue was whether federal authority outweighs state authority in the execution of four provisions of S.B. 1070 that were blocked by the U.S. Court of Appeals for the 9th Circuit.

Those provisions included the ability of police officers to make warrantless arrests of anyone suspected of having committed a deportable crime; the criminalization of undocumented aliens who live and work in Arizona illegally and those who employ them; and the “papers please” measure, which requires police officers to check the immigration status of anyone stopped, detained or arrested who they reasonably believe may be illegally present in the U.S.

The last mandate also requires officers to check detainees’ immigration papers before they are released.

Most of the justices—except for conservative Justice Antonin Scalia—seemed concerned about giving the state free rein to make its own immigration policies, apart from those determined by federal lawmakers. But they also seemed to understand Arizona’s argument, presented by D.C. super lawyer Paul Clement, that the state only sought limited authority, within the bounds of the Constitution, to deal with the estimated 12 million foreigners within its borders.

S.B. 1070 “borrowed the federal standard as its own” in combating Arizona’s “disproportionate share of the costs of illegal immigration,” Clement said, according to The Huffington Post.

Justice Anthony Kennedy noted Arizona’s “massive emergency with social disruption, economic disruption, residents leaving the state because of the flood of immigrants,” and seemed to suggest Arizona had a legitimate right to seek redress.

Conversely, they seemed skeptical about U.S. Solicitor General Donald Verrilli’s claim that the federal law preempted Arizona’s attempt at “attrition through enforcement.”

Even Justice Sotomayor, one of the court’s liberal justices, bluntly told Verilli that his main argument was “not selling very well,” according to “Why don’t you try to come up with something else? What’s left of your argument?” she asked.

Not included in the feds’ argument was the potential for racial profiling inherent in the law’s provisions, a point the high court’s justices seemed adamant about clearing up.

As soon as Verilli stepped to the lectern Chief Justice Roberts said: “Before you get into what the case is about, I’d like to clear up at the outset what it’s not about. No part of your argument has to do with racial or ethnic profiling, does it? I saw none of that in your brief.”

The solicitor general answered in the affirmative, but Roberts persisted. “Okay. So this is not a case about ethnic profiling,” he said.

“We’re not making any allegation about racial or ethnic profiling in this case,” Verilli answered.

But the issue of racial and ethnic discrimination is one of the chief concerns of a coterie of activist and religious groups, some of whom gathered on the Supreme Court steps in protest of S.B. 1070 April 25.

“We are here today to let the Supreme Court, as well as the court of public opinion, know that we will not allow these laws to take us back to the times of Black codes when there were two distinct classes of people, and that these groups are treated differently by the law,” said Hilary O. Shelton, the Director of the NAACP Washington Bureau and the Senior Vice President for Advocacy and Policy. “We will not return to a time when racial profiling is not only prevalent, it is in fact sanctioned and even called for by the law of the land.”

Jim Shee, a legal Arizona resident, testified that he has already become a victim of racial profiling because of this law.

“As a U.S. citizen, a life-long resident of Arizona, I never expected that I would have to carry my passport with me all the time. But when S.B. 1070 passed, I started getting stopped and interrogated for my papers, just because of the way I look,” he said. “Unless S.B. 1070 is struck down, I fear I will continue to face racial profiling and discrimination by the State of Arizona simply because of our race and the way we look. This is not what Arizona, or America is supposed to be about.”

Marielena Hincapié, executive director of the National Immigration Law Center, said no matter what the justices decide in June—when they are expected to make a ruling—the Law Center will continue to mount its challenge of this law.

Over 300 organizations and individuals joined 19 amici briefs filed in favor of the federal government’s challenge of S.B. 1070, including 68 members of Congress; 44 former state attorneys general; dozens of cities and towns; labor, business, and civil rights leaders; law enforcement experts; foreign governments; the American Bar Association; the American Civil Liberties Union; former Secretary of State Madeleine Albright; former commissioners of the U.S. Immigration and Naturalization Service; prominent religious institutions; and numerous faith, labor, and immigrants’ rights organizations. 


Zenitha Prince

Special to the AFRO