04/30/2012 08:43 am ET Updated Jun 30, 2012

Beyond SB 1070's Legality, an Apparent Question of Equality

Equal versus preferential treatment -- the principle argument behind American social liberties. We could see the struggle in voting rights for women and African Americans, affirmative action, religion and matters of the state, gay marriage, and now, it could very well apply to our immigration problem.

But not now.

Last, the Supreme Court began hearing oral arguments on the appeal of Arizona's 2010 immigration law, SB 1070.

Unlike the recent Affordable Care Act case, the federal government is challenging state legislation, arguing that the immigration law is an overreach for any single state to make. Orders on immigration must be made on "sound judgment on the behalf of the nation as a whole," according to Solicitor General Donald Verrilli.

Essentially, the question becomes whether the states have the right to enact and enforce immigration laws as they see fit -- is this a state or federal issue? The court could lean either way, with precedent for each side.

The Supremacy Clause in the constitution could be construed to give the federal government entire authority over matters of immigration. In 1941, the Supreme Court rejected a Pennsylvania immigration law in Hines v. Davidowitz, specifying that states cannot conflict, interfere or complement federal immigration efforts, as that authority belongs to the federal government.

On the other hand, 1976s De Canas v. Bica upheld a California law that targeted employers of illegal immigrants. And just last year, the Court upheld an Arizona law that denied business licenses to companies that hire illegals.

If upheld, the Court must view Arizona's law as an accessory, rather than a revision to federal law -- a manner in which the states would be welcome to rule by. This maxim is expressed in SB 1070: "This act shall be implemented in a manner consistent with federal laws regulating immigration..."

The intent is to make immigration policy more capable, precise and more narrowly tailored toward Arizona's specific legislative goals. However, intention remains outside of legality -- as it should.

As it stands, the Court is only going to rule on the four specific provisions enjoined the day before SB 1070 was set to go into effect:

- Inquiry about immigration status during a traffic stop, detention or arrest.

- Arrest without warrant if an individual is believed to have committed a crime that makes them eligible for removal from the United States.

- Failure to carry proper immigration documents results in a misdemeanor.

- Unauthorized immigrants cannot apply to work.

Each provision will be considered in the context of whether the state has the authority to enforce that rule, or if it remains in the hands of the federal government -- an administrative affair.

However, regardless of the ruling, there's a more apparent, intrinsic contention over SB 1070, particularly for these provisions. There remains a supplementary constitutional analysis: Does the law establish and promote equal or preferential treatment?

Theoretically, the immigrant problem for Arizona is Mexican immigration -- not European, Canadian or Latino, only Mexican. Sharing a border gives reason to believe there is a targeted demographic.

This, however, relies on an assumption.

Arizona properly structured the bill to aim at illegal "aliens" and "persons"; there is no mention of Mexican, or any other race or ethnicity in the bill. To properly evaluate SB 1070, one cannot assume -- what isn't written in the bill is legally beside the point.

One may argue that the only "aliens" law enforcement will target will be of the Mexican or Latino descent -- likely by appearance -- because of the Arizona-Mexico border. Again, this is merely an inference of how law enforcement will interpret the policy. Technically, with suspicion, officers may stop any individual in the state and every citizen will be required to have legal documents.

Moreover, in assuming Mexicans are the targeted demographic, one would be forced to judge the policy on some arbitrary regional scale. Alabama enacted a similar immigration law, arguably tougher than Arizona's -- would such general labels as "alien" only apply to Mexicans or Latinos here as well?

Georgia, Utah, South Carolina -- several other states have taken the problem into their own hands, choosing reinforcement of federal law rather than displacement. One cannot argue SB 1070 is discriminatory in Arizona, yet perfectly legal moving north and east across the country.

Fortunately, discrimination cannot be identified purely by public perception of the law. It only depends on the strict and narrow language of the bill. Arizona has left no room for error, at least in the writing. A failure to read and understand the bill is neither an excuse nor justification for its rejection.

Generally, regardless of the ultimate ruling, SB 1070 and other similar bills across the country should have minimal impact on immigration.

A recent Pew Hispanic Center report shows that between 2005 and 2010, nearly 1.4 million Mexicans moved or returned to Mexico, twice the amount from the previous five-year period.

Mexican immigration may work itself out as our economy continues to languish -- and it may for a while yet, with other matters taking priority.

Just yesterday, Senator Chuck Schumer (D-NY) announced the Senate will push for legislation that would effectively kill SB 1070, making the ultimate ruling by the Supreme Court meaningless.

As nothing more than a political ruse, whatever inkling of time and effort our Congress, at moments, chooses to show, has gone toward a piece of legislation that holds absolutely no influence or authority pending a Supreme Court ruling -- something that would not come until summer.

Debating the equal protection issues of SB 1070 may be beside the point, but so too may be the issue over federal versus state authority with such endeavors. Keeping it in Washington, if not alarming, continues to look like an ineffective resolution.

And we know at least one state, right in the middle of the mess, would seem to agree.

Armand Resto is a senior in environmental science and editor of the forum.