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What the Supreme Court's SB 1070 decision settles - and what it doesn't

Photo by Leslie Berestein Rojas/KPCC

Protesters rally in Phoenix on July 29, 2010, the day SB 1070 was partly enacted with four provisions blocked.

Arizona v. United States has been decided by the U.S. Supreme Court, but this doesn't mean the legal battle over Arizona's SB 1070 is anywhere near over. In fact, the court didn't even address the law's most controversial aspect.

What the justices decided today is whether four contested sections of the 2010 anti-illegal immigration law encroached upon the federal government's ability to set immigration policy, and thus were preempted by federal law. This was the basis of the Obama administration's July 2010 legal challenge, filed shortly before the law took effect.

On the eve of its implementation, a federal judge in Phoenix issued a temporary injunction blocking SB 1070's four most controversial provisions. Today's decision marked the end of a long and costly appeal by the state of Arizona.

The Supreme Court justices decided by a 5-3 margin to uphold one of the four provisons in question, Section 2(B), which empowers local police to check the immigration status of people they stop, detain or arrest if there is "reasonable suspicion" the person is in the country illegally. The court ruled that, as written, this provision does not conflict with federal law; however, the justices said it remains to be seen whether Section 2(B) will violate federal law in practice.

The court struck down three other provisions, including sections 3, 5(C) and 6, ruling that they did interfere with the federal government's authority. Section 3 made it a state crime for unauthorized immigrants not to carry an alien registration document; Section 5(C) made it a state crime for those here illegally to work or apply for work; and Section 6 authorized state and local police to arrest immigrants without a warrant if there was “probable cause” the person committed a deportable offense.

The end result: While police checking immigration status passed muster, the remaining three provisions are in conflict with federal law and won't be implemented. The decision is bound to affect court decisions in Georgia, Alabama, South Caroline, Utah and Indiana, all of which have enacted laws inspired by SB 1070 since 2010, and where legal challenges are pending. It will also have a bearing on how far states decide to go with their own immigration laws in the future.

But Arizona v. United States did not address civil rights or racial profiling, only the preemption issue. And the fact that Section 2(B) was upheld - the provision that critics say will lead to racial profiling - means it's still wide open in terms of pending and future legal challenges.

Even as the court ruled on preemption, the civil rights issue remained top of mind among guests on today’s AirTalk on KPCC, where guests and callers debated the likelihood of profiling. Kris Kobach, Kansas Secretary of State and the attorney who helped craft SB 1070, said there were built-in protections. The state has also distributed an anti-profiling training video to cops.

“The Arizona law says in four different places that officers cannot take into account a person’s race, ethnicity or national origin,” Kobach said. “The law is very clear on its face, it does not allow any consideration of race.”

But realistically speaking, profiling is bound to occur and already does, said Angelica Salas, director of the Coalition for Humane Immigrant Rights of Los Angeles.

“Unfortunately, what we have seen at the local level, in terms of rogue officers or in Arizona, the people who are being asked for their documents and being questioned about their nationality, the majority are Latino,” Salas said.

So what's next? The Supreme Court justices left open the door to further lawsuits, not only on civil rights grounds but further preemption challenges. There have already been legal challenges that address profiling and civil rights, and once Section 2(B) is implemented, it's likely there will be additional ones. (The law has 10 sections, only three of which were struck down today.)

In April, after the Supreme Court heard oral arguments (and during which Chief Justice Roberts inquired, by way of clarification, if racial profiling was part of the discussion), two constitutional law experts weighed in on this site with what might happen if Section 2(B) was upheld. One of them, chief counsel Elizabeth Wydra of the Constitutional Accountability Center, a progressive legal think tank in Washington, D.C., noted:

The federal government has challenged SB 1070 as being unconstitutional on its face, meaning that even without going into effect, it violates the constitution because it conflicts with the federal government’s authority over immigration policy. Even if that challenge failed, there would still be the possibility of a person coming into court and saying “okay, even if it isn’t unconstitutional on its face, it is unconstitutional as applied to me.”

And there are other possibilities. One already-enacted section allows residents to sue police agencies for so-called "sanctuary" policies that restrict enforcement of the law, for example; a recent Associated Press piece noted that some lawsuits like these could occur if the justices allowed local police in Arizona to begin enforcing the more contentious provisions.

In some ways, the Supreme Court's ruling on SB 1070 today is just a start.

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