Among some beleaguered Arizona residents and outside observers, there's a tendency to look for a silver lining wherever possible. This is entirely understandable, given the overt repression and legislated bigotry prevalent in recent years. The reaction to the Supreme Court's decision regarding SB 1070 is a case in point, yet despite the temptation to celebrate a partial victory, things are likely to get worse before they get better.
The good news is that the Court validated the notion that immigration is the business of the federal government and not the states. But this raises its own problematic set of conditions, since federal immigration laws and practices are arcane, and enforcement priorities can be highly politicized. Under the current administration, deportations have reached an all-time high, and the U.S.-Mexico border has been increasingly militarized. Still, the renegade nature of Arizona's repressive policies has only moved things from bad to worse.
So it indeed brings a sense of relief that the Court invalidated much of the state's noxious law. Left standing, however, is the notorious "show me your papers" provision of the law, and its ostensible invitation toward widespread racial profiling. This provision, which Arizona is immediately implementing, contains a directive for law enforcement officers and agencies to ascertain the immigration status of anyone with whom they have "any lawful contact" and as to whom there is a "reasonable suspicion" that they are undocumented.
The potential for systematic abuse is palpable. As one report observes, "Arizona tells police officers to look for specific signs that indicate they should ask for immigration papers when stopping a person. These signals include lack of a license, driving a car with foreign plates, difficulty speaking English and seeming nervous." Most people are nervous when stopped by the police, and learning the language is hardly a sinister trait. As if anticipating the likely problems that will ensue, the report notes that the governor has issued a statement saying that "officers have been trained not to racially profile while implementing the new law."
If you have to put out such a statement, things are already not looking good for the cause of justice. The fact that SB 1070 even requires training to avoid racial profiling in implementing it offers little assurance to impacted communities that their rights will be respected. Despite alleged officer training, it is equally clear that the indicia of being undocumented used to justify a "reasonable suspicion" will be closely tied to more obvious and basic factors of appearance, as well as one's presence in certain locales. European visitors to the Grand Canyon simply are not going to be equivalently impacted by the law, and it isn't hard to see why.
Additionally, the law applies in cases where "any lawful contact" with an officer or agency is engaged. Aside from traffic stops and the like, this can also include incidences where an individual calls the police for assistance, making it likely that already vulnerable communities will become even more so going forward. The discretion possessed by police to initiate "lawful contact" is enormous, given that there are innumerable laws for minor infractions and excuses to make contact as a matter of routine police business. Jaywalking and having a small crack in one's windshield are hardly state crimes, but now they can lead to "papers, please."
On the positive side, the Court seemed well aware of these possibilities, and even noted that its opinion does not foreclose other "constitutional challenges to the law as interpreted and applied after it goes into effect." But again, this is of limited reassurance to those likely to be directly impacted by the law. Challenging a course of conduct after the fact doesn't prevent it from happening in the first place. Legally, an "as applied" challenge can be difficult to mount, and does not necessarily result in the law itself being struck down even if evidence shows a pattern of discriminatory enforcement. Pending the resolution of any such challenges, the chilling impact of the law is going to be felt by already-marginalized communities around the state.
To its credit, the Obama administration has shown some resolve in limiting deportations and rescinding the 287(g) agreements that delegated immigration powers to state agents, including rogue figures such as Sheriff Joe Arpaio. Cynically, these moves appear to be a combination of election-year maneuvering and rebuking political opponents in Arizona and elsewhere. Immigration is likely to be a hot-button "wedge issue" in the upcoming election, and Latino voters are a growing and sought-after block. Beyond merely offering limited resistance to draconian laws such as SB 1070, the federal government still has a long way to go in establishing humane immigration policies based on human rights, economic equity, and the realities of border issues.
Despite these lingering concerns, there is something to be said for pushing back even a bit on Arizona's unconscionable forays into legalized discrimination. The state's politics in recent years have been dominated by incendiary rhetoric and invidious policies. Some politicians cavort with unabashed racists and pander to a nativist undercurrent. English-only mandates, the denial of public services, banning ethnic studies curricula, and courting racial profiling are among the initiatives that have made Arizona something of a national pariah.
The Supreme Court's ruling on SB 1070 does little to change this, but -- like rain in the desert -- at this point even a little is welcomed. Perhaps given the political aridness in Arizona of late, it's understandable that even a cloudy decision looks like a silver lining. Time will tell if it's a mirage or an actual oasis on the horizon...
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