Two days ago in Phoenix, U.S. District Judge Susan Bolton ruled that local police could begin enforcing the most controversial provision of SB 1070, the state's much-imitated 2010 anti-illegal immigration law.
Known as Section 2(B), it allows local police to check the immigration status of people they come across who they suspect of being in the country illegally. It was the only one of four contested provisions upheld by the U.S. Supreme Court in June, although the high court did so with the caveat that while Section 2(B) didn't appear to conflict with federal law as written, it was open to further legal challenges once in practice.
Since then, immigrant advocates in Arizona have been advising immigrants who are pulled over to provide only minimal information to police, while protesters have taken to the streets. Civil rights organizations, meanwhile, are preparing for complaints of racial profiling and potential lawsuits.
What happens next? In a post Tuesday, Chapman University constitutional law expert and SB 1070 supporter John C. Eastman provided his take on what to expect. Today we present an opposing view in response to the same set of questions from Linton Joaquin, an immigration law expert with the National Immigration Law Center in Los Angeles.
There is one thing that legal experts of all stripes seem to agree on: The legal trajectory of SB 1070 is far from over, and what happens in Arizona will be felt in other states that have adopted similar laws.
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?
Joaquin: The injunction of section 2(B) of SB 1070 was lifted on Sept. 18, so implementation of the provision can begin at any time. Implementation of Section 2(B) will likely increase racial profiling by law enforcement, due to the natural tendency to rely on racial and ethnic appearance in developing “reasonable suspicion” that a person is an unauthorized noncitizen. It will also result in people being subject to detention by law enforcement solely on the basis of suspicion of unauthorized immigration status, due to the practical difficulty of verifying immigration status, which inevitably will prolong detention.
These are precisely the kinds of enforcement consequences that the Supreme Court indicated would present constitutional problems.
M-A: How soon can we expect to see new legal challenges, particularly ones based on the civil rights/profiling component?
Joaquin: Our litigation challenge to Section 2(B) and other provisions of SB 1070 is still pending in the federal district court, and we will be working with our co-counsel and plaintiff organizations to monitor implementation and to document these kinds of abuses.
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?
Joaquin: There is litigation pending regarding laws with provisions similar to Section 2(B) in Utah, Georgia, Alabama and South Carolina. To date only the Alabama provision is in effect, and it and other provisions of the Alabama law have led to clear abuses such as those described in our Report: Racial Profiling in Alabama After HB 56 – Stories from the Alabama hotline – http://nilc.org/AlabamaCrisis.html.
While it is possible that legislators in other states may seek to enact laws similar to Section 2(B), that is extremely unwise policy, since such laws deter immigrant communities from seeking the protection of law enforcement and undermine the fundamental mission of law enforcement – to promote public safety.