Two years ago, in Arizona, Governor Janice K. Brewer signed into law Senate Bill 1070, which was meant to address the state’s exploding population of unauthorized immigrants. In 1990, there were fewer than a hundred thousand; by 2008, there were more than half a million, and immigration was becoming the state’s defining political issue. The law turned various federal immigration-law violations into state crimes, and it directed police officers to conduct an immigration-status check if they suspected that they were dealing with an unauthorized immigrant. Originally, officers were instructed to do this during any “lawful contact”; after an outcry, the law was immediately revised so that this check would apply only during a “lawful stop, detention, or arrest.”
By signing 1070, Brewer, a Republican, had made herself one of the country’s leading advocates of immigration enforcement. (The next year, she published a memoir in the form of a manifesto called, “Scorpions for Breakfast: My Fight Against Special Interests, Liberal Media, and Cynical Politicos to Secure America’s Border.”) Supporters of the law praised it as a proactive, state-level response to a problem that the federal government was ignoring. Detractors organized boycotts and protests, voicing fears that 1070 would turn Arizona into a state where anyone resembling a Mexican-American would face police interrogation.
In the next few years, the tide turned. After 2008, the population of unauthorized immigrants sharply declined, and the immigration-enforcement movement lost momentum; Russell Pearce, the state senator behind S.B. 1070, was recalled from office last year. And the law itself was something of an anticlimax: a series of lawsuits, including one filed by the Justice Department, prevented the implementation of its most controversial sections. Despite the furor, 1070 hasn’t had much of a direct impact on the lives of Arizonans. At least not yet.
This morning, the Supreme Court released its decision on the state’s appeal of the federal government’s challenge to the law. The court held that Arizona couldn’t be allowed to turn federal immigration violations into state crimes. Justice Kennedy, writing for the majority, warned of the danger of a situation in which “the State would have the power to bring criminal charges against individuals for violating a federal law even in circumstances where federal officials in charge of the comprehensive scheme determine that prosecution would frustrate federal policies.”
Justice Scalia, dissenting, replied that he didn’t fear such a possibility, adding, “What I do fear—and what Arizona and the States that support it fear—is that ‘federal policies’ of nonenforcement will leave the States helpless before those evil effects of illegal immigration that the Court’s opinion dutifully recites in its prologue … but leaves unremedied in its disposition.” Scalia’s decision was informed by his respect for state sovereignty, and also by his judgment of the “human realities” in Arizona. He described it as a place where “citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy.” That description was more accurate a few years ago, when this law was being debated, than it is today.
The court also upheld part of 1070, at least provisionally. Section 2(B) is the part of the law that directs police officers to conduct immigration-status checks; in the majority decision, Justice Kennedy wrote that such a policy could be acceptable, depending upon how it was enforced. The law states that both the officer’s suspicion and the officer’s attempts to confirm this suspicion must be “reasonable”; Kennedy suggested that, for instance, the detention of an otherwise law-abiding jaywalker might fail this test.
In Arizona, politicians reflected varying degrees of enthusiasm for the decision. Governor Brewer called the ruling “a victory for the rule of law,” saying the court had upheld “the heart of SB 1070”—meaning, presumably, Section 2(B). Richard Carmona, a Democrat who is campaigning to become Arizona’s first Latino senator, released a carefully hedged statement. “SB 1070 doesn’t help local law enforcement fix the problem,” he said. “It’s a distraction that hinders our ability to build trust with the communities we serve.” But he also called 1070 “a product of the federal government’s failure to act,” and issued an all-purpose dismissal of the Supreme Court decision: “Today’s ruling does not help us secure the border, and it does not provide a solution for the 400,000 undocumented people living in Arizona.”
In order to win, Carmona will need the strong support of Arizona’s large Latino population, which has been galvanized by the arguments over 1070. But he also can’t let himself be portrayed as insensitive to local concerns about unauthorized immigration. So he expresses sympathy for the supporters of 1070, even while calling for a very different solution: a comprehensive law that would provide unauthorized immigrants with “a pathway to earn legal status.”
As it happens, Mitt Romney is scheduled to be in Arizona today, although he might prefer not to be. He has tried to avoid articulating a clear position on 1070. (Earlier this year, during a Republican debate in Mesa, Arizona, Romney responded to a question about immigration by saying, “I think you see a model in Arizona,” which sounded like an endorsement of 1070. But then Romney explained that the “model” he was praising was the state’s embrace of E-Verify, a tool that allows employers to check the immigration status of potential employees.) In a statement released earlier today, Romney affirmed his belief that “each state has the duty—and the right—to secure our borders and preserve the rule of law, particularly when the federal government has failed to meet its responsibilities.” But he didn’t say whether he thought 1070 was a good idea. And he didn’t provide any details about his own plans, promising only to “work in a bipartisan fashion to pursue a national immigration strategy.”
As for the immediate effect in Arizona, we don’t know much more than we knew two years ago—there’s still no way to tell whether 1070 will fulfill the hopes of its supporters, or the fears of its detractors, or both. Near the end of his decision, Justice Kennedy offered an appropriately inconclusive conclusion: “There is a basic uncertainty about what the law means and how it will be enforced.”
Photograph by Mark Wilson/Getty Images.