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SB 1070 Ruling Doesn't

End Immigration Debate

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Andy Gomez expresses his displeasure that even a smidgen of SB 1070 was upheld by the Supreme Court at a rally Monday in Phoenix.
Even After The U.S. Supreme Court Rules, The Immigration Debate Rages And Awaits An Unwilling Congress

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By John Guzzon
Modern Times Magazine

June 27, 2012 — The U.S. Supreme Court might have made its ruling on SB 1070, but in the aftermath, the only thing that remains crystal-clear is that the battle is far from over.

Perhaps thanks to the superficially ‘split’ nature of the 5-3 ruling, and that the court decided against the state of Arizona on three out of four pieces of the bill before them, both sides quickly declared victory and in the end, it appears that no one really feels like they won.

From both the left and right came calls of victory, including Arizona Gov. Jan Brewer, U.S. Rep. Trent Franks of Arizona, Mitt Romney, Maricopa County Attorney Bill Montgomery, President Obama, and U.S. Rep. Raul Grijalva of Arizona, among many others.

Clearly, the ruling of the highest court in the land did nothing to stop the vitriolic nature of the debate.

But by 4 p.m., when hundreds were gathering in front of the U.S. Immigration and Customs Enforcement’s Phoenix headquarters to decry the Supreme Court’s decision, it was also clear that the protests and demonstrations were far from over.

How could everyone win AND lose? Is that even possible?

Unfortunately in these polarized, over-exposed and asinine modern times, the answer is yes.

“Conservatives” won a victory because they have succeeded in intimidating all immigrants — and those that look Latin — into a state of fear about what the state might do to them. Some, like Marisa Franco of the National Day Laborer Organizing Network have openly claimed the attempt to subvert the federal government in pursuit of a state-run immigration policy is tantamount to racism.

“The goal of hate bills like SB 1070 is to embolden racism,” she said Monday.

Despite crying foul, those on the left also won because SB 1070 was basically gutted, with a majority of the Supreme Court — minus a recused Justice Elena Kagan who had advised President Obama on SB 1070 while serving as Solicitor General — denying the state's ability to enforce any immigration law. Kagan’s dissent on this matter won’t be repeated in other immigration decisions because any future cases are not likely to involve her work as Solicitor General.

But the most important victory for all citizens and non-citizens alike must be that the Supreme Court pointed the finger at Congress as the sole-arbiter of immigration policy, not the President and definitely not the states.

The U.S. Supreme Court is not interested in changing case law stretching back to the early period of the republic when the founding fathers learned that federal powers must take precedent over the rights of the states. Those that don’t understand history and civics might not understand that 50 states operating as a Union must cede certain powers to the federal government. The failure of the first social contract that bound the United States — the Articles of Confederation — led to the Constitution, and for good reason. A union is not a functioning union at all without some ground rules such as printing money, immigration, diplomacy and war.

“The federal power to determine immigration policy is well settled. Immigration policy can affect trade, invest­ment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws. Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad,” according to the majority opinion, delivered by Justice Anthony Kennedy, who happened to be appointed by President Ronald Reagan. “It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 sepa­rate States.”

Gov. Jan Brewer obviously did not get the memo as in her “victory speech” she lionized a Tenth Amendment validation to the ruling. The Tenth Amendment, which reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” State-rights conservatives and groups like the Tenth Amendment Center and others that have strong support at the Arizona Capitol have long used that sentence to claim states can do what is not in the Constitution.

But that point of view is not only ignorant of the facts history, but simply short-sighted. “The powers not delegated to the United States (federal government),” also includes the power of the Supreme Court to be the final arbiter of issues like the Constitutionality of SB 1070.

Instead of acknowledging their flawed policy, Brewer and others played by the republican playbook for at least the half decade: always claim victory and never admit defeat.

“While we are grateful for this legal victory, today is an opportunity to reflect on our journey and focus upon the true task ahead: the implementation and enforcement of this law in an even-handed manner that lives up to our highest ideals as American citizens. I know the State of Arizona and its law enforcement officers are up to the task. The case for SB 1070 has always been about our support for the rule of law. That means every law, including those against both illegal immigration and racial profiling. Law enforcement will be held accountable should this statute be misused in a fashion that violates an individual’s civil rights,” Brewer said in a statement Monday.

Yet, the Supreme Court even addressed the delusional “rule of law” argument, opining that being illegal is not necessary against the “law.”

“Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law. Re­moval is a civil, not criminal, matter. A principal feature of the removal system is the broad discretion exercised by immigration officials. Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all,” according to the court’s majority opinion which was endorsed by Chief Justice John Roberts, and justices Sonia Sotomayor, Anthony Kennedy, Ruth Bader Ginsburg, and Stephen Breyer.

Immigration is a civil, not criminal matter. The “rule of law” justification for SB 1070 and its imitators is a hollow sham.

Beneath all of the rhetoric — as always — lay the honest truth: Those that wanted to insert states into immigration issues have utterly and totally failed.

The two provisions that have survived the legal process that followed the state’s passage of the bill — one earlier by a federal judge and one by the U.S. Supreme Court Monday — merely reaffirmed obvious powers the state already had. One, which targeted day labor centers, allows police to write an additional ticket for people slowing on municipal street to pick up day workers. The other is that police can refer individuals to Immigration and Customs Enforcement in regards to their residency, but in very limited cases.

“Some who support the challenge argue that, in practice, state officers will be required to delay the release of some detainees for no reason other than to verify their immigration status. Detaining individuals solely to verify their immi­gration status would raise constitutional concerns,” according to the decision. “A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission. 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.”

Even more sobering is that immigration is one of the largest issues of modern times and NOTHING is being done that even approaches a solution.

Most democrats and those on the left should be commended for tackling that fact head on and commending the U.S. Supreme Court for identifying that Congress has hegemony over immigration, so in order to solve this issue, the country needs to have this national debate where it belongs — Washington, D.C.

“The Supremacy Clause provides a clear rule that federal law “shall be the su­preme Law of the Land; and the Judges in every State shall be bound thereby, anything in the Constitution or Laws of any State to the Contrary notwithstanding.” Under this principle, Congress has the power to preempt state law. There is no doubt that Congress may withdraw specified powers from the States by enacting a statute containing an express preemption provision,” according to the majority decision. “State law must also give way to federal law in at least two other circumstances. First, the States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regu­lated by its exclusive governance. The intent to displace state law altogether can be inferred from a framework of regulation “so pervasive . . . that Congress left no room for the States to supplement it” or where there is a “federal interest . . . so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.”

To their credit, a litany of those on the left jumped on the opportunity of the Supreme Court’s call for Congress to act, including President Obama, Phoenix Mayor Greg Stanton and Arizona House Minority leader Chad Campbell.

“The Supreme Court ruling on SB1070 is not surprising. What we need is comprehensive immigration reform and border security so we can solve this issue for the long-term, not more divisive legislation and bickering. In light of today’s ruling, I ask all leaders at every level of government to put aside their political agendas and partisanship to work together on comprehensive, fair and effective immigration reform and border security,” Campbell said.

Why doesn't the right want to tackle one of the most heated and fundamentally neglected issues of the day? Probably because it is an issue that only lives within their ranks in vitriolic gobbledygook. Actually doing something is an entirely different ball game and one republicans will lose because it goes against most of their rhetoric. Doing something about immigration requires work, effort and money as well as a larger federal government — things which republicans fundamentally oppose.

So the only thing to come out the whole thing is that there is a problem and that something needs to be done. So, now can we get to it?

Unfortunately, there is no end in sight.

John Guzzon is editor of Modern Times Magazine.
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