06/26/2012 12:19 pm ET Updated Aug 26, 2012

Dear Governor Jan Brewer...

I write this letter to ask that after two years of your state's unsuccessful efforts to create its own immigration policy, could you demonstrate the leadership that put you into high office, put politics aside, and admit that the Supreme Court of the United States dealt your administration a huge defeat yesterday? I understand that at first blush such candor sounds odd, and perhaps politics led to the news conference where you declared:

Today's decision by the U.S. Supreme Court is a victory for the rule of law. It is also a victory for the 10th Amendment and all Americans who believe in the inherent right and responsibility of states to defend their citizens. After more than two years of legal challenges, the heart of SB 1070 can now be implemented in accordance with the U.S. Constitution.

Despite these bold pronouncements, I hope that you can perhaps avoid the advice of your team and move forward? I suspect after a day of reflection, we both have more faith in the citizenry than trying to sell the court's decision as a victory? As you already know, the Supreme Court struck down three of the four provisions of SB 1070 being challenged:

  • Section 3, making it a state crime for a person to be unlawfully in the United States and for failing to register with the federal government.
  • Section 5, making it a state crime for a person who is not lawfully in the United States to work or seek work.
  • Section 6, authorizing state and local police to arrest without warrants when "the officer has probable cause to believe... [t]he person to be arrested has committed any public offense that makes the person removable from the United States.
As you also know, the only provision to survive the court's opinion was the controversial Section 2(B), also known as the " papers please" provision. While there have been several news accounts on the decision, as fellow blogger Noah Feldman aptly noted, the court upheld Section 2(B), for now:

In practice, though, the court took away some of the potentially frightening effects of the law, suggesting a road map for the state to follow in implementing it. The court said that detaining people only to determine their immigration status 'would raise constitutional concerns,' implying that the length of the stop should not take longer than it ordinarily would to perform a criminal background check.

Therefore, it is probably unwise to claim a victory in the face of defeat. And if we care about immigration, perhaps state officials should ensure that section 2(B) is not implemented in a manner that prolongs the amount of time anyone is detained under the law. A prudent approach would be to have statewide education efforts, instead of mandates to immediately implement a law that the high court has expressed concern over, and specifically stated:

Detaining individuals solely to verify their immigration status would raise constitutional concerns... And it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision.

As I predicted in a post several weeks ago, SB 1070 has been left essentially toothless. While it may require state law enforcement to make immigration status determinations, there isn't much that the state can do with the determinations once made. Furthermore, Justice Kennedy has kept the door open to subsequent challenges to Section 2(B) if it's applied in an unreasonable fashion, i.e., if it were used to justify prolonged detentions. Time will only tell if officials can somehow avoid the likely prolonged detentions.

I suggest that perhaps it is time to come to terms with what happened yesterday.