Last week, SCOTUS agreed to hear the Department of Justice challenge to SB 1070, Arizona’s comprehensive immigration law. According to commentators, it is likely that the government could be successful in challenging the immigration law, especially with regard to the challenged provisions of SB 1070 which require state law enforcement officials to determine the immigration status of anyone they stop and require that law enforcement officials determine the immigration status of arrestees. Two other challenged provisions criminalize undocumented immigration, making it a crime for immigrants to fail to register under a federal law and allows the police to arrest people without warrants if they have probable cause to believe they have committed a deportable offense.
The implications of this decision extend far beyond Arizona and immigration. The larger issue animating these conflicts is the issue of federalism and states’ rights. According to the National Conference of State Legislators Immigrant Policy Report, across all 50 states, state legislators introduced 1,607 bills and resolutions related to immigrants and refugees across all 50 states, which was an increase of 207 bills/resolutions. Of those, states, 42 states and Puerto Rico enacted 197 new laws related to immigration, as of Dec. 7, 2011. Five more states crafted omnibus bills, similar to SB 1070; they were Alabama, Georgia, Indiana, South Carolina and Utah. All of five of those have been challenged by the Department of Justice, on both preemption and civil rights bases. Just yesterday, the federal district court in Charleston enjoined two portions of South Carolina’s comprehensive immigration law, including a provision which made it unlawful for an adult to fail to carry an alien registration card or receipt.
If SCOTUS upholds SB 1070, the danger, beyond the civil rights and civil liberties implications, there is the distinct possibility that the U.S. could end up with a patchwork of immigration laws, similar to the current state of reproductive rights. Left to the states, there would be no uniform immigration protocol for U.S. immigrants. This could lead to further isolation of immigrant populations in states that have adopted these types of comprehensive laws. On the other hand, maybe South Carolina, Georgia and other states that choose to enact such draconian immigration bills will experience the types economic consequences that Alabama will probably face in the aftermath of the enactment of HB 56.
It is also notable that SCOTUS is taking this issue on during an election year. It is a priority for President Obama to address immigration during his campaign and it will make the questions about why he did not pursue immigration reform even more pointed. Among the proponents of SB 1070, HB 56 and similar immigration laws, over and over they argue that these laws and necessary because the federal government refuses to really tackle immigration reform. As states continue to grapple with the issues and consequences of immigration, documented and undocumented, hopefully, the federal government will weigh in and provide a progressive, comprehensive immigration reform bill that will change the conversation around immigration.