Arizona's Immigration Law and the Supreme Court

This week's Supreme Court decision to weigh in on the constitutionality of Arizona’s immigration law, SB1070, will have an enormous effect on the course of the national immigration debate and, potentially, on the direction of the nation as a whole.

Proponents of SB1070 claim it is necessary because the federal government was not acting to secure Arizona’s borders.

The bill’s chief sponsor, former Arizona State Senator Russell Pearce, working closely with Washington-based anti-immigrant lobbyists, drafted the most heavy handed immigration legislation in history.

It goes well beyond the reach of the federal law by effectively criminalizing undocumented immigrants. The most onerous passage, sarcastically dubbed by detractors as the “show me your papers” provision, requires that state law enforcement agents determine the immigration status of anyone they stop if they have a “reasonable suspicion” the individual may be undocumented. Opponents fear the law will lead to racial profiling of Latinos, Asians, and other citizens of color.

The Obama administration has mounted a fierce legal challenge to SB1070 arguing that it runs afoul of the Constitution which gives the federal government the exclusive power to regulate immigration. Several key provisions of the Arizona law have been enjoined by the lower courts.

In the meantime, other states, including Utah, Georgia, and Alabama have enacted similar legislation.

Alabama’s law, by far most punitive, was signed into law last spring. Despite a similar legal challenge by the administration, some of its harshest provisions have taken effect, including one which effectively criminalizes undocumented immigrants and requires that school children prove their lawful immigration status.

The Alabama experience has provided an alarming preview of what to expect if in Arizona under the full force of SB1070. The citizens of Alabama have been plagued by due process violations, acute shortages of essential workers, and the creation of a climate of fear which has lead to decisions by Latinos—documented and undocumented alike—to flee the state.

The media has been replete with graphic images of produce rotting in unattended Alabama fields and idle machinery abandoned amid the flight of terrified workers.

Alabama officials have been repeatedly embarrassed by the shocking arrests of foreign auto executives who were detained by local law enforcement for failure to produce immigration papers.

The Supreme Court has long taken the position that immigration is about national sovereignty—the right of a country to protect its borders. Its decision on the Constitutionality of SB 1070 will be felt not only in states that have enacted copy cat legislation, but throughout the country.

Should the Court strike down the Arizona immigration law it will reaffirm the well established principle that immigration policy is exclusively a federal matter; inextricably tied to the idea of the United States as a sovereign nation.

However, if the Court allows SB 1070 to stand, more states will undoubtedly follow Arizona’s lead, resulting in a disparate patchwork of state immigration laws throughout the country. The challenge then will no longer be limited to the federal government’s authority to regulate immigration, but to very idea of the United States as an indivisible nation.

David Leopold who is an immigration attorney in Cleveland, Ohio. He is the immediate past president of the American immigration lawyers association. Follow him on Twitter  @davidleopold.