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SB 1070 'papers please' provision to go into effect - what now?

Protesters should slogans during a prote

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Protesters opposed to Arizona's immigration law SB 1070 in front of the U.S. Supreme Court earlier this year.

After two years of legal wrangling, a federal judge in Arizona has ruled that police in the state may begin enforcing the most controversial section of SB 1070, the state's precedent-setting 2010 anti-illegal immigration law. 

This provision, known as Section 2(B), was the only one of four contested provisions that the U.S. Supreme Court did not strike down in its June decision on SB 1070. It 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 did not conflict with federal law, but that it remained to be seen if it would violate federal law in practice. Since then, Section 2(B) has been the subject of continuing legal challenges, including a last-minute motion by civil rights and other groups hoping to block its implementation.

The Associated Press reported this afternoon that U.S. District Judge Susan Bolton, the same judge who initially blocked Section 2(B) and other provisions shortly before the law was partly implemented in July 2010, has ruled that this section can now be enforced. Bolton denied requests to block it earlier this month, going with the high court's decision.

So what happens next? Legal experts on both sides of the SB 1070 debate agree on one thing: The legal challenges are far from over.

Last week I queried a couple of legal experts on what to expect, including John C. Eastman, a constitutional law expert and a supporter of SB 1070 who has served as counsel to legislators drafting anti-illegal immigration measures. Here is his take. 

M-A: What can we expect to happen next with SB 1070? How soon might we see Section 2(B) enforced, and what might we expect to see in practice once it is?

Eastman: I expect Arizona law enforcement officials to start enforcing the law as soon as the injunction is lifted. And, given the intense training that has occurred over the intervening years while the legal challenges were proceeding, I expect that in most cases, none of the “racial profiling” concerns will turn out to be true. That is not to say there will not be the errant law enforcement official who does not comply, but the law is pretty clear – only reasonable suspicion based on things other than race or ethnic background are permissible grounds for inquiry into immigration status.

M-A: If the provision goes into effect, how soon can we expect to see new legal challenges, particularly ones based on the civil rights/profiling component?

Eastman: I would expect some “as applied” challenges, based on specific instances of immigration inquiries that appear, on first blush, to be based on race or ethnic background.  But I also expect that, in most cases, the police will have a perfectly reasonable, non-racial or ethnic reason, for the inquiry.

M-A: Some state governments have asking courts to reconsider various provisions of their own SB 1070-style laws. Depending on how the implementation of Section 2(B) shakes out, what effect might we expect to see elsewhere? And what might a subsequent flurry of civil rights lawsuits do?

Eastman: I think the states that were pushing ahead will not be deterred from adopting Section 2(B)-like provisions. The real issue, in my mind, is whether they try to adopt some modified version of the provisions that the Supreme Court struck down.

Expect more analysis on the future of SB 1070 this week. The June Supreme Court decision can be read here.

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