(Reuters) – As the Supreme Court readies a decision on Arizona’s tough immigration law, the consensus among advocates on both sides is that at least part of the measure will be upheld. If that happens, a separate pending case might block the law from taking effect.
A long-standing case, brought before the Obama administration filed the challenge that awaits a ruling any day, could become the new focus of attack on the Arizona law requiring people stopped by police to verify their immigration status.
Unlike the case of Arizona v. United States before the justices, the dispute brewing in a U.S. district court in Phoenix takes direct aim at the racial profiling issue. That case, filed in May 2010, within a month of Arizona’s Republican governor signing the law, asserts that people will be subjected to immigration investigations after being stopped on the basis of their appearance and accent.
Known as Friendly House v. Whiting, the lawsuit was brought by nine individuals and 14 civil rights and immigrant organizations, including the Phoenix-based immigrant social-services agency Friendly House. It claims the Arizona law violates the constitutional guarantees of equal protection of the law, due process and protection against unreasonable searches and seizures.
Civil rights advocates said that if the high court upholds the Arizona measure on the grounds that federal law does not preempt it, they will likely ask the judge hearing the Friendly House case to issue an order blocking the law based on the civil rights claims.
“Whatever happens at the Supreme Court, this is just the first inning in a very long ballgame,” said Karen Tumlin, managing attorney in the Los Angeles office of the National Immigration Law Center and among those at the lead of Friendly House v. Whiting.
The judge overseeing that case, U.S. District Court Judge Susan Bolton, has suggested from the start that she believes the law raises problems based on civil rights protections and should not be enforced.
The Arizona case awaiting a ruling from the Supreme Court, like one over the U.S. healthcare law, reflects deep differences between the Democratic Obama administration and Republican states, and has already become a flash point in the presidential campaign. There are 11.5 million illegal immigrants in the United States, of whom 360,000, or 3 percent, reside in Arizona, according to the Department of Homeland Security. Most of Arizona’s almost 2 million Latinos are in the United States legally.
Illegal immigration from Mexico has plummeted in recent years, and a Pew Hispanic Center report this spring found net migration now at a standstill, in part because of the weakened U.S. job market and tougher border enforcement.
Five states – Alabama, Georgia, Indiana, South Carolina and Utah – followed Arizona’s lead and have adopted strict laws to try to discourage illegal immigrants from settling in their states. Many of those measures have been blocked by separate litigation and could be affected by the Supreme Court’s ruling.
The Arizona law requires officers to ask for documentation if they have “reasonable suspicion” someone is in the United States illegally. It also makes it a state crime to be present in the country or seek work without proper documentation and allows the arrest of people believed to qualify for deportation. Those provisions are currently suspended pending the high court’s decision.
President Barack Obama’s executive order Friday stopping deportations for certain young people brought to the United States illegally is unrelated to the Supreme Court case.
Arizona officials have vigorously defended the state law known as S.B. 1070 against all claims, saying they needed to act to stem the tide of people illegally crossing their border from Mexico. The state contends the law would not lead to racial profiling. Last week, Governor Jan Brewer, also anticipating a Supreme Court decision upholding all or part of the law, issued a two-page order that included the warning that police training materials should “make clear that an individual’s race, color or national origin alone” are not grounds to suspect someone is in the United States illegally.
BITTER DEBATE
While the case before the Supreme Court has intensified the bitter debate over illegal immigration and potential racial profiling, as a purely legal matter it hinges on the respective powers of the federal government and the states. Under the U.S. Constitution’s Supremacy Clause, federal law preempts related state statutes unless Congress has allowed exceptions. The Obama administration contends immigration is a national concern that touches on complex domestic and foreign policy problems and cannot be addressed by a patchwork of laws from the 50 states.
Arizona counters that as a border state with Latin America it bears a disproportionate share of the cost of illegal immigration. It says its new law is consistent with the goals of federal immigration policy so it can stand side by side with federal law, and not be preempted.
The Friendly House case has been moving slowly in recent months as the U.S. judge and parties await the high court’s ruling.
While Judge Bolton has not heard arguments on the constitutional merits of the claims, her orders on procedural matters have suggested the law could at least be temporarily blocked on due process, equal protection or other civil rights grounds.
In a preliminary October 2010 order in Friendly House v. Whiting, Bolton said part of S.B. 1070 could violate Fourth Amendment protections against unreasonable police stops. Requiring police to determine the immigration status of everyone arrested, Bolton wrote, “will, on its face, impermissibly expand the scope of detention for many arrestees because their liberty will be restricted while their status is checked.”
Just last month she rejected a request by Arizona officials to throw out the case because, they asserted, the allegations from individual plaintiffs were too speculative. Bolton said in her May 29 order that some of the Latinos who have joined the case claim they have been stopped while driving a car or riding a bike even when no grounds for the stop could be cited.
KAGAN SITS OUT
The Obama administration has a weaker hand than usual at the Supreme Court, because one of the four liberal justices, Elena Kagan, decided not to participate. She gave no reason for the recusal, but as a former U.S. solicitor general she likely was involved in an early stage of the litigation. In a related case last year that Kagan also sat out, the justices by a 5-3 vote upheld an Arizona law that penalized businesses that hire illegal immigrants, over Obama administration arguments that the law should be preempted.
When the justices heard oral arguments in April, they signaled by their comments they might be ready to accept Arizona’s defense of S.B. 1070 and uphold at least a substantial part of the law.
The Friendly House case is at such an early stage that it is impossible to say how the justices would rule on the civil-rights claims were they to hear them. If it were to reach the Supreme Court, Justice Kagan might participate. Because the claims were brought by advocacy groups and individuals, not the U.S. government, as in Arizona v. United States, it is possible that she would not feel required to sit it out.
In preparation for an adverse decision, immigrants’ rights advocates are exploring other options to blunt fallout from the ruling. They are beefing up hotlines and training staff so they can quickly get the word out about the ramifications of the ruling in a state where about a third of its 6.5 million people are Hispanic.
Alessandra Solar, director of the American Civil Liberties Union’s Arizona office, said the organization is bolstering its networks with social service agencies, churches, and other community groups. It is also providing space and phones for a 20-line phone center to be staffed by volunteers ready to take calls from people who have questions about the ruling or believe they have been racially profiled by police.
Solar said they also want to get the word out that no matter how the court rules, a decision is unlikely to take immediate effect.
Under normal court procedure, it takes about a month before any mandate related to a decision is issued, and advocates stand ready to turn to Friendly House v. Whiting to win a new order blocking the law.
“We have to make sure people don’t panic,” said Luis Avila, organizing director of Stand for Children Arizona, a local group that advocates for quality education. “We have to remember there are mixed families living in the community,” Avila added, referring to families with some members with proper documentation, others without.
Avila, who grew up in Mexico and arrived in Arizona when he was 17, became a U.S. citizen three years ago. “I still get nervous when I’m stopped,” he said, referring to his Mexican looks and accent. He said he goes out for a run each morning and has considered, if the Supreme Court upholds the law, making sure he has his driver’s license in his shoe just in case he suddenly needs identification.
(Reporting by Joan Biskupic; Additional reporting by Tim Gaynor; Editing by Howard Goller, Amy Stevens and Douglas Royalty)