The Supreme Court may have had its say about Arizona’s infamous immigration law, but the battle is far from over. In fact, today’s ruling left the fate of the bill’s most controversial provision up in the air—and appears to have created some confusion over just what the court actually said.
The law’s most controversial provision requires Arizona law enforcement to make a “reasonable attempt . . . to determine the immigration status” of anyone they arrest or detain if they have “reasonable suspicion” that the individual might be an illegal immigrant. The Supreme Court did not strike down that section of the law, but despite the impression given by some news reports, they didn’t exactly uphold it either—at least not permanently. Instead, the Court said that they could not determine the constitutionality of the provision, known as 2(B), “without the benefit of a definitive interpretation” from Arizona state courts. And the Justices explicitly added that the ruling (pdf) “does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.”
“The Court’s opinion today does clear the way for the provision to take effect, but in the narrowest of possible ways,” Karen Tumlin, a managing attorney at the National Immigration Law Center, which opposes the law, told Lean Forward. The majority opinion, authored by Justice Anthony Kennedy, suggests various interpretations of the provision that could violate federal law, but does not take a position on whether any of those interpretations are correct.
Of course, that hasn’t stopped Arizona Governor Jan Brewer—who signed the the bill into law back in April 2010—from declaring that the ruling “upholds [the] heart of” the law. Tumlin characterized Brewer’s interpretation of the ruling as a “gross overreading.”
So what happens now? The fight over 2(B)’s legality will continue in the ninth circuit court. Arizona district courts will have to determine how to interpret the law, as well. Tumlin said that several civil rights law suits were already pending.
“We will use every tool at our disposal to take this provision down,” she said. “This is the first inning of a very long baseball game.”
Other opponents of the law are also optimistic. “To be honest, I don’t think section 2(B) of 1070 will continue to hold up in court,” said Suman Raghunathan, director of policy and partnerships at the Progressive States Network. Raghunathan added that today’s ruling will likely dampen enthusiasm for copycat laws across the country. “This ruling sends a very strong message to other states not to follow Arizona’s lead,” she said. “It continues to reinforce this cautionary tale of Arizona strongly overreaching.”
Ned Resnikoff is an urban policy analyst, researcher, writer, and editor. His byline has appeared in a variety of publications, including the New York Times, San Francisco Chronicle, Dissent, and The Nation. He writes the newsletter Public Comment, which can be found at publiccomment.blog. Recommended
