Arizona: Did Supreme Court take the steam out of states' immigration activism?

A majority of Americans want to see their states adopt immigration laws similar to Arizona’s. But the Supreme Court’s decision Monday may give state legislators more wiggle room to avoid the subject.

Ross D. Franklin/AP
Arizona Gov. Jan Brewer reads a statement as she reacts to the United States Supreme Court decision regarding Arizona's controversial immigration law, SB1070, coming down at the Arizona Capitol Monday, June 25, in Phoenix.

While the US Supreme Court on Monday struck down major pieces of Arizona’s controversial immigration law as state overreach, it’s far from clear whether the ruling will quash legislative efforts in other states to ferret out illegal immigrants in their populations.

The political backlash over state immigration laws and the natural ebbing of illegal migration resulting from the poor economy were two reasons the number of immigration-related bills at the state level declined by 44 percent between 2011 and 2012.

But a big part of that equation was also the Supreme Court’s pondering of Arizona’s SB 1070, as states awaited an inkling of where the nation’s top judges stood on the topic.

The decision on Monday was in parts decisive, chiding Arizona at one point for introducing “intrusions on the federal scheme.” But it left intact the Arizona law’s “papers please” provision that allows police officers to ask for identification from people they suspect to be in the country illegally.

That caveat leaves enough of an opening for state legislators to keep weighing the majority support among Americans for tough immigration-related laws against such laws' political and economic risks.

“Short term this decision keeps immigration as a front-and-center issue in the 2012 election, because it didn’t provide closure and essentially told both sides to go at it,” says Peter Brown, assistant director of the Quinnipiac University Polling Institute. “In the long term, what it means is that state legislatures, at least in some states, will likely have to deal with this in terms of whether they get an Arizona-style law that includes the parts that got the seal of approval.”

The Supreme Court did draw some definitive lines for states pondering Arizona-style laws. Making it a state crime for an illegal immigrant to seek work and walk around without immigration papers, for example, is not allowed. Also not allowed is giving police authority to arrest people for immigration-related crimes.

"Federal law makes a single sovereign responsible for maintaining a comprehensive and unified system to keep track of aliens within the nation's borders,” Justice Anthony Kennedy wrote in the 5-to-3 majority opinion. Justice Kennedy noted specifically that if the court allowed Arizona to arrest people for not carrying papers attesting to their legal residency status, "every state could give itself independent authority to prosecute federal registration violations."

On the “papers, please” aspect, the court in effect said it needs to be tested after implementation, since the justices could not gauge its legal implications without seeing it at play. The Arizona law allows police officers [in the process of enforcing other laws] to check the immigration status of people they reasonably believe to be in the country illegally – a key part of the broader symbolism of state immigration laws intended to push illegal immigrants to move elsewhere.

That spectre of “racial profiling” is a critical one as attitudes around immigration are looming larger in the presidential election.

Across the US, about 56 percent of Americans want to see their states adopt an Arizona-style law, according to Quinnipiac. But among Hispanics in battleground states, the spectre of the Supreme Court upholding the “papers, please” provision showed that 60 percent of Latino voters thought it would create an anti-immigrant and anti-Hispanic environment, with 28 percent of Latinos saying the law would have no effect on attitudes, according to a recent Latino Decisions poll.

In Tennessee, polls regularly show at least 70 percent of voters backing tougher immigration laws, and Joe Carr, a Republican lawmaker from Murfreesboro, has acquiesced, sponsoring several key anti-illegal immigrant bills that have passed the Tennessee Legislature with bipartisan majorities.

Dissatisfaction with Washington’s ability to control immigration remains a driving force in the state’s politics, he says, although he concedes lawmakers don’t have much more work to do on the immigration front.

“Now that the Supreme Court decision has come down, we will be taking a hard look at what other additional measures we can take that the court has allowed to move forward,” Mr. Carr says.

Some immigration experts say it’s likely that the steady growth in immigration-related state bills since 2005 is over, punctuated by Monday’s Supreme Court decision.

In the first quarter of 2012, legislators introduced 865 immigration-related bills and resolutions, compared with 1,538 in the same period in 2011. According to the National Conference of State Legislatures, Arizona lawmakers introduced 33 immigration-related bills this year, compared with 57 last year.

“I think at this point we’ve literally exhausted every state or municipality willing to pass these kinds of laws,” says Jamie Longazel, a sociologist who studies immigration-related issues at the University of Dayton.

One telling fact: The Supreme Court, in a case out of Arizona last year, confirmed the ability of states to demand that employers use the federal e-Verify immigration database to check the status of new employees. In the year since, no states – even states like Alabama and Georgia, which passed SB 1070-style laws in the interim – have actually walked through the door the Supreme Court opened to mandate such checks.

Meanwhile, backlash from not just Hispanic activists, but also from teachers, religious leaders, business people, and farmers, have made immigration-related legislation more difficult and politically risky to pass, policy experts say.

“It’s really possible that we’re seeing an important turning point,” says Tamara Jacoby, president of ImmigrationWorks USA, which advocates immigration reform on behalf of small businesses. “I think a lot of people in the states have been waiting for a way to save them from having to [pass tougher immigration laws], and I think [the Supreme Court] decision helps them.”

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