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Supreme Court Strikes Down Most Of Arizona Immigration Law

Local Law Experts on SB 1070 Supreme Court Decision
What does the Supreme Court ruling on Arizona's controversial immigration law mean to San Diego? We take a look.
GUESTS:Glenn Smith, Law professor, Cal Western School of Law Lilia Valesquez, Immigration and Naturalization attorney, adjunct professor, Cal Western School of Law

CAVANAUGH: So today's Supreme Court ruling on Arizona's immigration law is a subject of passionate discussion here in San Diego where we are right on the border. Many members of our community have close ties with Mexico, many employers have a lot at stake extending on how laws are enforced. What does today's ruling mean for us? My guests, Glen Smith, law professor at cal western state. Sorry, cal western school of law. Thanks for being here. SMITH: You're welcome. CAVANAUGH: And Lilia Velasquez. You are an immigration and naturalization attorney to be practicing for 30 years. VALESQUEZ: And also an adjunct professor at California western school of law. SMITH: Absolutely! [ LAUGHTER ] CAVANAUGH: There were four parts of this law in question, and let's start with the part that the US Supreme Court did not strike down. The show me your papers provision. What exactly is this? SMITH: Well, it's important to keep in mind they didn't strike is it down, but they also didn't support it. They didn't uphold it. They said it's too early to render a verdict on that. What that would have done is say when a state officer has -- is stopping someone for another reason, and they have reasonable suspicion, they can make a "reasonable attempt" to investigate that. And that's one of the key issues in figuring out ultimately whether this section of the law is constitutional, what's reasonable. The Court made it clear that state officers could not keep people in detention for longer than they otherwise would under the state claims or use just looking into their immigration status as an excuse for keeping them longer in custody. But a lot remains to be seen on that. CAVANAUGH: And there were some provisions that were struck down. Just briefly. SMITH: Three provisions struck down. One would have allowed -- what would have had the state criminalize being an employee, an illegal immigrant looking for employment, one would have enforced federal registration laws, and one would have helped the furthermore government find people who arguably who should be removed from the United States. The cord said, no, thanks, the federal government needs to be in charge of enforcement in these areas. CAVANAUGH: We should be clear that this doesn't affect California law. SMITH: Correct. CAVANAUGH: So why are people are watching it so carefully? SMITH: A lot of other states have been watching. There have been, as I understand, about 30 states that have had Arizona-clone laws proposed. Five adopted. So lots of states, many of which do not have sympathy to the rights of immigrants, and have been looking to how far they could push to use their state law to fight this, but I think the Supreme Court said a relatively yellow caution right to these straights. Immigration is such an important issue in our state and city, that's why we're following it. And Arizona is across the border. So it can have spillover effects on the overall climate for civil rights, and protections of minorities in our state. CAVANAUGH: And Lilia, for the clients that you see, are they -- do you think they're pleased by this or not pleased by this? VALESQUEZ: In different ways. A lot of people do feel that the hostile environment, and the policies that will be implemented in Arizona will eventually make their way to San Diego. And in that regard, we already that being enforced in North County. Where indeed I.C.E. has an office in the Escondido police department. So if the police arrest an individual for a traffic violation, they usually ask them, about, well, what about your papers? Very much like Arizona. Show me your papers. They show no paper, they take them to the station, and an I.C.E. officer will take over and question the individual and place them in removal proceedings, depending on the circumstances. Whatever a our immigrant community in Arizona, it affects us as well. It could make people very, very afraid of calling the police, it affects us at an emotional level, kids who are going to school may feel intimidated. And watch over their shoulder. Is anybody following me? CAVANAUGH: And it's very hard for people to feel confident that they know where the law stands. So this ruling is not the end of the story. I want to go to Adrian Florido who was at the news conference this morning. Thanks so much for joining us. FLORIDO: Hi, how are you? CAVANAUGH: So first of all, who was at this conference? It was called by the ACLU a collection of people. FLORIDO: It was a wide-ranging coalition of civil rights leaders, labor representatives who represent all sorts of different groups within San Diego. CAVANAUGH: Were there any law enforcement people like chief William Lansdowne? FLORIDO: The chief was not there. Chief David, and the cheese of police from national city. CAVANAUGH: What was the message? FLORIDO: The overriding theme of the conference was played out by Kevin Keenan, and they were happy that the Court struck down several provisions, but obviously disappointment on their behalf that the one key provision, the show me your papers provision, was upheld. They saw some hope in the fact that the Court did leave open the possibility that that could be chemicaled on other grounds. And Keenan said they're issuing a warning to other provisions that they might uphold something similar. CAVANAUGH: Do you think it was significant that neither chief Lansdowne nor sheriff gore was there? FLORIDO: Well, chief Lansdowne couldn't make it, he was reviewing the policy and what he would say later today. The chief of police of Chula Vista did speak. And he said we wouldn't expect to see anything like that in his police department not only because in his opinion, it should be shot down on moral principle, but also the policing principles. And if something like this would know implemented, it would lead to racial profiling. And that could also lead to a fear among Chula Vistans to a fear of reporting, essentially being profiled. That we should not expect to do something like this. At least in his city. CAVANAUGH: And I assume this was nobody there from Escondido? FLORIDO: I did see Olga-Diaz standing in the crowd. She is the only Latina council woman there. And she has taken a strong stance opposing this policy. And I'm sure that she'll have plenty to say later today. I'll keep you posted on that. CAVANAUGH: Thanks so much for joining us, FLORIDO: Thanks. CAVANAUGH: Lilia, let's go back to Escondido since that is the police in San Diego where this issue is most alive. Does this ruling vindicate what's happening in Escondido? VALESQUEZ: I don't think so. What Glen indicated earlier, the state police in Arizona are not going to have discretion to just arrest anybody. And it's clear that if the law is implemented in a draconian way, it could be thrown out. Now, racial profiling this, is a problem. Gen brewer said earlier today that they were going to follow the rule of law, and not racially profile anybody. But realistically, how else can you determine the person's immigration status? How do you approach someone? Bilbray said that you can determine the status of a person all the way down to their clothing or their shoes. And so the key here is how then will they be able to approach an individual other than based on the racial profile? CAVANAUGH: So Glen, how might this get picked up? Is the Supreme Court keeping the option open of reviewing this? SMITH: They're definitely keeping it open. This lawsuit was brought by the federal government against Arizona defending federal government powers over immigration as compared to state. So this was a question about federalism. How much shared power should there be? The issue of racial profiling was not in this lawsuit, and the Court pointedly said if that were to be a problem, a lawsuit could be brought, and they would consider the issue at that point. So it is definitely -- it didn't stop this process in its tracks, but it also did not by any means provide a green light to any kind of abusive enforcement in the future. CAVANAUGH: And let's review the climate here in California. There was a statement put out this morning by Kamala Harris saying I am pleased with the Court's decision. She writes I believe today's decision is an important step in setting aside policies that divide law enforcement from the communities we serve. So is there any sense that there might be the political will to get something like this one provision passed in California? SMITH: I'm sure some people will have the will to do it as they always do. But I'd be very surprised. California would be among the last states I would expect to adopt anything like this. The threat really comes from the overall impact on the climate of relationships in our state by things that are happening next door, and in other states. But I think even if we took this issue out, immigration would continue to be a controversial issue that would play out in the presidential election and politics for a while to come. CAVANAUGH: Is this something that people are talking about to you, that they're anxious of going to Arizona because of the way the law is being implemented there? VALESQUEZ: Hopefully Arizona will be left with no immigrants there, and say oops, we made a mistake. CAVANAUGH: And see how it affects business. VALESQUEZ: Right. They confuse things. They confuse immigrants with drug abuse, with crime, and not people who are here, law-Abading, working in jobs that their kids do not do. We really need to look beyond the policy and at the people that will be affected by this. And I think what is important is that DHS is not going away in letting the state Arizona police deal with the issue of undocumented migration. Eventually, what I hope is going to happen, so they arrest the person because they suspect we're undocumented, turn it over to DHS, and they will say, oh, this kid falls under the dream act policy of the first status CAVANAUGH: Uh-huh VALESQUEZ: We're not going to take any action against that. So question the wisdom of using limited valuable state resources in arresting an undocumented person, turning it over to DHS, rather than having the local police do it. CAVANAUGH: The president's announcement, ten days ago, he would in fact allow young immigrants to apply for work permits. Is this ruling in some ways going to highlight the difference between Obama's approach and Mitt Romney's approach? It seems like there's two separate things happening in this country for a moment. SMITH: It highlights that, and it highlights the fact it's another reason why Congress may be called top act. This is a question where the Court is trying to do its best to interpret what it thinks Congress' intent it. Congress can ultimately weigh in and clarify this. And I would hope that as part of handling immigration problems generally, Congress would decide under what circumstances it should operate, and its priorities and the president's order are primary. CAVANAUGH: Now, the other decision made by the Supreme Court, is the mount Soledad cross in La Jolla. SMITH: The Court decided not to weigh in at this particular point in litigation. So the highest court that's rendered a verdict on this is a 9th circuit, which says that the cross as it stands is unconstitutional. So the Court not getting involved in this allows the 9th circuit to do what it's ordered, which is that the case will go back to the district judge who will have to figure out what kind of remedy is appropriate to remedy this problem. It is not over. CAVANAUGH: So it is not over. SMITH: And in fact the key justice -- this, justice Alito, issued an opinion saying he was okay for this being put off for now because it isn't a final decision, and it will come back at some point in the future. So this is just the end of another round. But it is important to keep in mind that the authoritative court has held that the cross as it now stands is unconstitutional. So under that decision, something has to be done to remedy what the Court saw as a pro-Christian, pro-religious taint in the way it now stands. Something has to happen. There have to be discussions about what to do with this, and I hope they'll be resolved in instructive and efficient way. This problem could be solved easily if people didn't want to turn it into a political symbol and something to be controversial. CAVANAUGH: Thank you so much.

Supreme Court Decision Outlined


— A requirement that police, while enforcing other laws, question people's immigration status if officers have reasonable suspicion they're in the country illegally.


— A requirement that all immigrants obtain or carry immigration registration papers.

— A provision making it a state criminal offense for an illegal immigrant to seek work or hold a job.

— A provision that would allow police to arrest suspected illegal immigrants without warrants.

More stories, documents & multimedia on the controversial Arizona anti-immigration law.

United States Vs. Arizona
U.S. Supreme Court ruling on Arizona's crackdown on immigrants.
To view PDF files, download Acrobat Reader.

The Supreme Court struck down key provisions of Arizona's crackdown on immigrants Monday but said a much-debated portion on checking suspects' status could go forward.


The court did not throw out the state provision requiring police to check the immigration status of someone they suspect is in the United States illegally. Even there, though, the justices said the provision could be subject to additional legal challenges.

The decision upholds the "show me your papers" requirement for the moment. But it takes the teeth out of it by prohibiting police officers from arresting people on minor immigration charges.

The court announced that Thursday would be the last day of rulings this term, which means the decision on President Barack Obama's landmark health care overhaul probably will come that day.

Justice Anthony Kennedy wrote the opinion for the court that was unanimous on allowing the status check to go forward. The court was divided on striking down the other portions.

Kennedy said the law could — and suggested it should — be read to avoid concerns that immigration status checks could lead to prolonged detention.


The court struck down these three major provisions: requiring all immigrants to obtain or carry immigration registration papers, making it a state criminal offense for an illegal immigrant to seek work or hold a job and allowing police to arrest suspected illegal immigrants without warrants.

The Obama administration sued to block the Arizona law soon after its enactment two years ago. Federal courts had refused to let the four key provisions take effect.

Five states — Alabama, Georgia, Indiana, South Carolina and Utah — have adopted variations on Arizona's law. Parts of those laws also are on hold pending the outcome of the Supreme Court case.

Chief Justice John Roberts and Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor joined all of Kennedy's opinion.

Justices Antonin Scalia and Clarence Thomas would have allowed all the challenged provisions to take effect. Justice Samuel Alito would have allowed police to arrest undocumented immigrants who seek work, and also make arrests without warrants.

Scalia, in comments from the bench, caustically described Obama's recently announced plans to ease deportation rules for some children of illegal immigrants.

"The president said at a news conference that the new program is 'the right thing to do' in light of Congress' failure to pass the administration's proposed revision of the Immigration Act. Perhaps it is, though Arizona may not think so. But to say, as the court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the president declines to enforce boggles the mind," Scalia said.

The case focused on whether states can adopt their own immigration measures to deal with an estimated 11 million illegal immigrants in the face of federal inaction on comprehensive immigration reform, or whether the federal government has almost exclusive authority in the area of immigration.

Kennedy wrote obliquely about the impasse on immigration reform at the national level.

"Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law," Kennedy said.

Arizona Gov. Jan Brewer said in a written statement that the ruling marks a victory for people who believe in the responsibility of states to defend their residents. "The case for SB1070 has always been about our support for the rule of law. That means every law, including those against both illegal immigration and racial profiling," Brewer said. Law enforcement will be held accountable should this statute be misused in a fashion that violates an individual's civil rights."

Civil rights groups that separately challenged the law over concerns that it would lead to rights abuses said their lawsuit would go on.

Even with the limitations the high court put on Arizona, the immigration status check still is "an invitation to racial profiling," said American Civil Liberties Union lawyer Omar Jadwat.