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Hoffman on Arizona immigration ruling

June 25, 2012 – The U.S. Supreme Court today issued its long awaited decision on a controversial Arizona law aimed at enforcing federal immigration laws while implementing additional state provisions dealing with undocumented immigrants. The court held that three of the most controversial provisions were unconstitutional, but left open the question whether the fourth provision could pass constitutional muster in future proceedings. Geoffrey A. Hoffman, clinical associate professor and faculty supervisor of the University of Houston Law Center Immigration Clinic, has been watching this case closely as it made its way through the courts. He examined the high court’s ruling and explained what it means for future immigration policy.

Q.) Can you outline the court’s ruling?

The Supreme Court held that three of the four provisions of SB 1070 under consideration were preempted under the Supremacy Clause of the federal Constitution.  The fourth provision – section 2(B) - was held not preempted, as written. It requires inter alia local and state officers to determine the immigration status of a person if “reasonable suspicion” exists that he or she is unlawfully present in the United States.  The other provisions concerned “warrantless arrests,” criminalizing employment without authorization and failure to carry a registration card. Importantly, the Court left the door open for future “as applied” challenges based on preemption and racial profiling.

Q.) What happens under the “show me your papers” provision if a person cannot prove he is in the country legally? Is the person taken into custody, transported to a detention center, taken before a federal immigration judge?

In addition to requiring officials to check the immigration status of persons stopped if “reasonable suspicion” exists, section 2(B) also requires officials to determine the status of anyone who has been placed under arrest, regardless of whether the person is suspected of being in the country illegally. There is no temporal limitation. If someone is taken into custody, i.e. arrested, then there is the real danger of prolonged detention, which the Supreme Court duly noted. Under this scenario, Constitutional concerns would be raised, and could serve as the basis for future challenges.  If the person is unable to prove their status, then yes they could be detained and would be placed in removal proceedings before an immigration judge, or in some cases subject to an administrative order of removal without the benefit of seeing a judge.

Q.) What does the ruling mean for the five other states that have adopted variations of the Arizona law?

Clearly, any attempt by other states to hinder the federal government’s enforcement scheme in the manner of the three impugned provisions would be similarly preempted. In terms of other states with “show me your papers” laws, these are subject to “as applied” challenges, as the Supreme Court noted, and there is pending litigation already in other states brought by civil rights groups that is on-going.

Q.) What happens next? Will each variation be subject to Supreme Court review as states craft their own immigration laws or does this set the constitutional standard?

Each state will have to give serious consideration to the potential for litigation in the event they attempt to do what Arizona had attempted in these three provisions. Importantly, what the Supreme Court has signaled is that we cannot have a “patchwork” of state schemes competing with the federal enforcement scheme.

Q.) What are the implications of the Supreme Court’s decision outside of the issue of preemption?
The Supreme Court significantly has now made clear that immigrants and immigration policy is essential to the future of the nation as a whole.  In the words of the court, “Immigration policy shapes the destiny of the nation.” The court recognized the importance of immigrants not only in determining our future but in shaping our past.  The decision can be used by proponents of the Obama Administration’s decision to offer deferred action to certain DREAMers who meet the strict guidelines announced June 15. The decision reinforces the authority of the executive to set immigration enforcement priorities and policy.


To schedule an interview with Professor Geoffrey Hoffman, please contact: Carrie Criado, Executive Director of Communications and Marketing, cacriado@Central.UH.EDU, 713.743.2184; or John Kling, Communications Manager, , 713.743.8298.