Anyone who witnessed Arizona Governor Jan Brewer's rambling, borderline incoherent press conference on the Supreme Court's SB1070 ruling must have been struck by two things. First, she had written her speech well before actually hearing the court's verdict, and secondly she had no idea what had actually occurred in the ruling. Tellingly, Republican Presidential nominee Mitt Romney and his adviser Kris Kobach, the mastermind of the anti-immigrant state law movement were respectively silent and sober in their immediate post-ruling spin. They must have realized that the Supreme Court had just gutted the anti-immigrant state-law movement's core belief that states could create and enforce their own immigration laws.
In the one place where Kobach and his followers have tried to claim victory, in the upholding of the "papers please" portion of the law, the court has prevented Arizona from enforcing this provision until mid-July. The court in its decision left a very clear path for SB1070's opponents, to knock out this misguided provision in a lower court. Opponents of the law, such as MALDEF, are expected to ask the lower court to freeze the enforcement of SB1070 until they can get a ruling on the racial profiling issues.
While the Court did not outright kill this bill, the anti-immigrant crowd must realize that they have just witnessed the beginning of the end of the state immigration law movement.
It is looking increasingly like Kobach was wrong; states cannot draft and enforce their own immigration laws. This has not stopped Kobach from trying to spin the Courts ruling as a victory. His take is that the pieces that were struck down were "the less important provisions of the law," and because the "paper's please" provisions was upheld, the state immigration law movement has won a great victory. This is nonsense, the three provisions that were struck down where central to the ability of other states to create and enforce their own immigration laws. If upheld they would have created legal precedent for other states to pass their own immigration laws outside of the existing federal ones. The Court was clear in striking down those three provisions; the Federal Government has pre-emptive powers in enforcing our nation's immigration laws.
The "papers please" provision was upheld because it mirrored an existing relationship between the United States and local law enforcement officials. Justice Kennedy writing for the majority wrote: "status checks [do] not interfere with the federal immigration scheme; the consultation between federal and state officials is an important feature of the immigration system." Kennedy's argument underscores why the court struck down the other three provisions: they were all written outside of the federal government's immigration laws. Striking these three provisions down is a significant blow to other states thinking about passing their own immigration laws.
Kobach's other assessment that the core of SB1070 has been left intact in the "papers please" provision is only half correct. While the Court upheld this provision, they also found enough substantial questions that they remanded it to a lower court, where it may be struck down. SB1070 cannot be enforced until these questions are answered. The Supreme Court has gone so far as to say that if this part of the law is ever enforced it must be done in conjunction with help from the federal government. Furthermore, local law enforcement officers clearly do not want to enforce these laws. "We absolutely expect lawsuits..." Tucson Police Chief Villasenor said. "This will result in our officers being tied up in court rather than working on the streets to reduce crime." What good are these types of laws, if law enforcement officials don't want to enforce them?
In some ways the political blow of the Court's ruling is almost worse than the legal one. Romney is already distancing himself from his earlier position that SB1070 is a model for the nation. He now says we need a national federal solution. Romney now acknowledges that the court's ruling gives states much less authority to pass their own immigration laws. He is now calling for a comprehensive Congressional fix to our immigration system. This is bad for Kobach, how can he convince other states to do this when the standard-bearer of his immigration plan will no longer defend it publicly? More problematically for Kobach, after the Court's ruling what more can states actually do without the federal government's help? As of this writing, not much.
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