After the Supreme Court struck down the heart of Arizona's anti-immigrant SB 1070 law on Monday, President Obama expressed concern over the one provision that the high court let stand for the time being:
"I am pleased that the Supreme Court has struck down key provisions of Arizona's immigration law. ... A patchwork of state laws is not a solution to our broken immigration system -- it's part of the problem.
At the same time, I remain concerned about the practical impact of the remaining provision of the Arizona law that requires local law enforcement officials to check the immigration status of anyone they even suspect to be here illegally. I agree with the Court that individuals cannot be detained solely to verify their immigration status. No American should ever live under a cloud of suspicion just because of what they look like."
Hooray for the Justice Department's bold challenge to the Arizona law and copycat attempts in other states. However, there is a basic hypocrisy in the president's "concern" over section 2(B) that the Supreme Court punted on, awaiting word on how state courts would interpret its limits and how Arizona police would implement the law.
First some background. The Supreme Court struck down three of four key provisions of SB 1070. Arizona acted improperly by trying to enact its own immigration laws by making it a crime to be an unregistered immigrant and to solicit work in the state. Arizona also could not authorize its police to arrest immigrants who they believe are deportable; in other words the state cannot help ICE enforce federal immigration laws unless asked to do so by the feds.
However, for now, under section 2(B) of SB 1070, if Arizona police validly stop a person for violation of a state law, in the process they can also ask for immigration papers if there is "reasonable suspicion" that the person is unlawfully present in the United States. The section also requires state and local authorities to determine the immigration status of any person placed under arrest, regardless of whether the person is suspected of being in the country unlawfully.
The president's critique of the Court's inaction on section 2(B) is ironic, because in fact, under the current ICE "Secure Communities" program (S-Comm) which Obama's Department of Homeland Security has expanded, his administration has essentially implemented a section 2(B) process across the nation without the consent of the states. As part of normal enforcement practices, state law enforcement agencies who fingerprint individuals submit those fingerprints to a state identification bureau. The prints are then routed to the FBI to ascertain whether there are any outstanding warrants for the individual. But under S-Comm, the fingerprints are automatically sent by the FBI to ICE's immigration database to initiate an immigration status background check; if there is a "hit" or there is a question as to someone's legal status, FBI sends a message to various departments within ICE, and the law enforcement agency is also informed. ICE then determines whether to order the local police to hold the person for pick up by ICE.
ICE has taken the position that the sharing of fingerprints for immigration enforcement purposes is mandatory whether or not a state consents. States such as Illinois, New York, and Massachusetts have objected to this process, but ICE has ignored the states' requests to opt out of this process.
All too often, victims of crimes, minor offenders, and even crime witnesses have been swept up by S-Comm. Reports that domestic violence victims have been rounded up because of S-Comm are common. More than one-third of individuals arrested under S-Comm have a U.S. citizen spouse or child; Latinos comprise 93 percent of individuals arrested through S-Comm, even though they are only about 75 percent of the undocumented population. There is little wonder why, at oral argument in the SB 1070 case, U.S. attorneys arguing against the law refused to point out that there was a racial profiling problem with section 2(B). That would have been more duplicity.
If President Obama is really concerned about the effects of section 2(B) and that "no American should ever live under a cloud of suspicion just because of what they look like," then he should order an end to the Secure Communities program.