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June 25, 2012

Host: Ted Simons

U.S. Supreme Court Ruling: SB 1070 - Legal

  |   Video
  • ASU law professors Paul Bender and Carissa Hessick and immigration attorney Regina Jefferies provide legal analysis of the Supreme Court ruling on SB 1070. Plus, State Representative John Kavanagh and former state lawmakers/political consultant John Loredo talk about the opinion and the politics of enforcing SB 1070 moving forward.
  • Paul Bender - Professor, ASU
  • Carissa Hessick - Professor, ASU
  • Regina Jefferies - Chair, Arizona chapter, American Immigration Lawyers Association
Category: Law   |   Keywords: SB, 1070, SB1070, US, supreme, court, arguments, ruling, ,

View Transcript
Ted Simons: Good evening and welcome to "Arizona Horizon." I'm Ted Simons. The United States Supreme Court today upheld the most controversial section of Arizona's immigration law, Senate Bill 1070. That section requires police to make a reasonable attempt to determine the immigration status of someone who has been stopped, detained, or arrested, when the police have reason to believe that the person is in the country illegally. But the court struck down three other major provisions of S.B. 1070. In a moment, we will discuss the court's action with three legal experts, but first, reaction from governor Jan Brewer, who claimed a court victory with today's ruling.

Jan Brewer: So today is a day when the key components of our efforts to protect the citizens of Arizona, to take up the fight against illegal immigration, in a balance -- balanced and constitutional way has unanimously been vindicated by the highest court of the land. The heart of Senate bill 1070 has been proven to be constitutional. Arizonans and every other state's inherent authority to protect and defend its people has been upheld.

Ted Simons: Here now to give us a legal analysis of the Supreme Court's ruling are Arizona State University law professors Paul Bender and Carissa Hessick. Also joining us is Regina Jefferies, chair of the Arizona Chapter of the American Immigration Lawyers Association. It is good to have you all here. Thanks for joining us. Let's get some initial impressions now.

Paul Bender: The court did not uphold what governor brewer refers to as the core provision. It didn't strike it down. It said it would not strike it down on its face but it said that in order for it to be constitutional, it would have to be construed by the state to basically do nothing. So this is not a vindication of Arizona's policy. This is a refutation of Arizona's policy. This statute was passed in order to get illegal immigrants out of Arizona, and the court held that states cannot do that. States have no constitutional authority to remove people from the state because they're illegal.

Ted Simons: Thoughts?

Carissa Hessick: I'll add. I know that the action that governor brewer was talking about was the one that probably captured public attention most but from a legal perspective, it was the other parts of the law that were pushing the envelope much, much further. The part about asking people about their immigration status was a minor change legally, whereas the provisions about employment, the provisions about registration, failure to carry registration documents, creating a new state crime, these were the really novel legal issues presented by S.B. 1070, and there the federal government had a resounding success.

Ted Simons: Thoughts?

Regina Jefferies: I would completely agree with that. And from a practical perspective, as well. We can see that this isn't going to really have much of a change, because secured communities is already in operation in many of the jails in Arizona. People are already being detained for other crimes that they have committed. So people aren't going to be detained basically for being in the country without permission.

Ted Simons: Let's start with the one that's got everyone's attention because the one that was not struck down, as you mentioned. Who wrote the opinion and what was the court's reasoning?

Paul Bender: Justice Kennedy wrote the opinion and the court's reasoning with that one was that as long as the state merely communicates with the federal government and asks them hey, we have somebody here, are they illegal? There's nothing wrong with that. That's to be encouraged. But the state may not detain anybody for a period of time longer because they think they're illegal. They can only detain them during the period of time when they are detaining them for the crime they were arrested for, because this statute does not -- it would be unconstitutional for a state to arrest somebody because they think they're illegal. But I think the court is very clear that you should check with ice about their status, but you may not hold the person because you think they're illegal. You have to let them go if you would let them go if they were not illegal.

Ted Simons: And it sounds like justice Kennedy suggested that if you hold them longer, we would be interested in seeing that again.

Carissa Hessick: That's right. They signaled that if that were to happen, that an as-applied challenge would be appropriate and the courts would look at it at that point and they specifically said they weren't deciding that issue today. They were leaving it for another day. What they really did is they said look, if the state interprets this law very narrowly and officers enforce it very carefully, then we don't think there's a preemption issue. If the state interprets it broadly or officers are detaining much, much longer, then bring challenges once those things have started to happen.

Ted Simons: From a practical standpoint, how narrow can the state enforce this?

Regina Jefferies: Essentially what the state will be doing is what they're already doing. If they've stopped someone for a dui, for example, they're already going to have an independent reason to detain that person because they've already committed a crime. They're going to check the immigration status of that person. If the person is here unlawfully, ICE will place a hold and decide to take the person or not. With the Supreme Court decision, that's not going to change. It's not going to give them an independent reason to stop someone who's jaywalking necessarily and ask them if they're in the country illegally and detain them for a long period of time.

Paul Bender: Important language in that part of the opinion is this was from Kennedy's opinion, it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision. The court is holding that states may not enforce federal immigration law, except under federal direction and supervision. It can't do it on their own.

Ted Simons: This one may have a life in the future as we talked about once certain aspects of the law are enforced. You mentioned when I asked for your thoughts that you didn't think this was the most important factor here as far as what the court did today. Talk to us about that.

Carissa Hessick: From a legal perspective, when S.B. 1070 was passed, I think lawyers reacted differently to it than the general public did and that's because there were two big arguments being made that are sort of really novel and new. One argument was that states can feel free to enact whatever sort of laws that they want as long as they mirror federal law, the mirror image theory was a big argument behind some of the S.B. 1070 provisions, including the registration documents provision. Another argument that was made was look, you can't conflict with federal law as long as you're following the same principles as Congress and so here when we're making it a crime to seek employment, Congress wants to deter employment by people who are here illegally so we're acting with those same goals in mind so that doesn't create a conflict, that's not preempted. The court rejected both of those arguments, at least in this context right? They rejected the mirror image theory when it came to the registration documents, and they rejected the whole the policy of Congress argument. That's a big deal for those people who were looking to expand the role of the states when it came to immigration.

Ted Simons: Was that a surprise to you?

Regina Jefferies: To me, it wasn't a big surprise and I'll tell you, because particularly the registration provision and also, the other provisions that you're talking about, those are extremely complex areas of federal law that even regular practitioners have a hard time following. For example, the decision as to whether or not someone might be removable for a removable offense, that's a decision that an immigration judge makes after many arguments. It's not a decision that a police officer on the street can make while he's conducting a traffic stop.

Ted Simons: And as far as the three that were struck down here, state crime for immigrant not to be carrying papers correct?

Paul Bender: That's unconstitutional to make that a state crime.

Ted Simons: Yes, the idea that it's a straight state crime for someone to look for or accept work.

Paul bender: That's unconstitutional. Congress has said states may not do that.

Ted Simons: And what you were referring to, this warrantless thing where you may have done something somewhere.

Paul Bender: You arrest somebody because you think they're removable, and again, states are not allowed independently to enforce immigration law. That's for the federal government. They can only do it under the supervision and direction of the federal government. I mean, that's the really important part because the state's been saying we can enforce federal immigration law as long as we enforce the law and what the court said is the law is not just what's written, it's the way it's enforced, and the way immigration law is enforced has got to be completely in the hands of the federal government.

Ted Simons: So basically, you can work with, you can't work independent.

Carissa Hessick: That's right. One of the big arguments that the state was making in this case that Arizona was making was they said look, federal law is different than federal policy. And we only have to worry about federal law, we don't have to worry about the fact that a particular presidential administration has different enforcement priorities. And there's quite a bit of language in this opinion that said Arizona, you're wrong. The enforcement priorities of the federal government are part of federal law.

Ted Simons: What did you read in the dissent opinions?

Carissa Hessick: I thought they were fascinating, three very different opinions. One really broad, historical opinion by justice Scalia, one very narrow, technical language, textual opinion by justice Thomas and justice Alito agreed with the majority that the registration documents provision was preempted and couldn't be included.

Ted Simons: As far as what you read as far as the dissenting opinions, it was interesting that Scalia came down pretty tough on this.

Paul Bender: It's not unusual.

Ted Simons: He did it anyway. Talk to us about it.

Paul Bender: It's interesting because governor brewer says this was a vindication of Arizona. Scalia says that the result of this decision is to deprive states of what most would consider the defining characteristics of its sovereignty. How you can say that a decision that defines you of your sovereignty is a victory?

Ted Simons: He also said that to say that Arizona contradicts federal immigration law by enforcing applications of federal immigration law that the president declines to enforce, he says it boggles the mind.

Regina Jefferies: Well, actually I would take issue with that as well as I'm sure professor Bender or anyone here would. To that point, the registration provision is a perfect example of this because the registration provision of federal law has not been updated for many, many years. Some of the documents that are included on there you no longer receive. Many types of immigrants who are here legally don't receive documents that are necessarily on that list, so this is just one example of many where Arizona's arguing that they mirror federal law but, in fact, it does not necessarily mirror federal law because federal law on immigration anyway is much more than just the statute. It's also policy decisions, enforcement.

Paul Bender: That's the important thing and the court holds that that policy preempts state law. It's not just the statute. Federal policy preempts the states. So that's a really important part of it.

Ted Simons: The injunction against the provision, though, is still in effect until what happens?

Carissa Hessick: Well, procedurally and professor Bender knows more, the case has to get returned to the ninth circuit and the ninth circuit has to return it back to judge Bolton until she can vacate or change it to get rid of the injunction for section 2B.

Ted Simons: Nothing changes until all of those machinations occur correct?

Carissa Hessick: That's right.

Ted Simons: So how long before judge Bolton decides --

Paul Bender: It won't be very long. A month or two. It won't make any difference because S.B. 1070 as construed by the Supreme Court or the way the Supreme Court says it has to be construed to be constitutional doesn't change anything. The question in my mind is when judge Bolton removes the injunction from enforcing it at all, will she repeat what justice Kennedy says about how narrow the provision has to be interpreted? To try to head off the possibility -- because it's happened in Arizona in the past, of some law enforcement officials here not paying attention to what the Supreme Court says.

Ted Simons: So what changes? What are you telling your clients, what are you telling people that ask you for advice? What changed from yesterday until today, what will change once judge Bolton makes her remarks?

Regina Jefferies: Practically speak, not a whole lot has changed. A lot of this has been happening. I've seen lots of people pulled over who are booked into a jail and as part of security communities, their information is run with ICE and ICE makes a decision whether or not to detain them. At the same time, people do continue to have the same rights as previously, as far as answering questions with police officers and things of that nature. But to be honest, as professor Bender said, not much has really changed here.

Ted Simons: So last question, I've got to get a yes or no because we're running out of time. Is this the end of S.B. 1070 in the courts?

Carissa Hessick: No.

Ted Simons: What do you think?

Regina Jefferies: No.

Ted Simons: Not at all.

Paul Bender: No.

Ted Simons: All right, good. You guys following it, great --

Carissa Hessick: Unanimous decision.

Ted Simons: A unanimous decision. Good to have you all here. Thank you all. Great stuff.

U.S. Supreme Court Ruling: SB 1070 - Political

  |   Video
  • ASU law professors Paul Bender and Carissa Hessick and immigration attorney Regina Jefferies provide legal analysis of the Supreme Court ruling on SB 1070. Plus, State Representative John Kavanagh and former state lawmakers/political consultant John Loredo talk about the opinion and the politics of enforcing SB 1070 moving forward.
  • Rep. John Kavanagh - Arizona State Lawmaker (R)
  • John Loredo - Former Democratic State Lawmaker
Category: Law   |   Keywords: SB, 1070, SB1070, US, supreme, court, arguments, ruling, ,

View Transcript
Ted Simons: We'll take a look at today's supreme court decision from a more political perspective, but first, more reaction from the governor and Phoenix city leaders.

Jan Brewer: This is the day that we have been waiting for. And make no mistake, Arizona is ready. We know the eyes of the world will be upon us. We know the critics will be watching and waiting, hoping for another opportunity to continue their legal assault against our state. But I have faith in our law enforcement, our brave men and women in uniform have been trained so they are able to enforce this law efficiently, effectively, and in harmony with the Constitution. Civil rights will be protected. Racial profiling will not be tolerated.

Daniel Garcia: The phoenix police department will enforce all laws, including Senate bill 1070 in a manner to ensure equal justice, that's provided to every person, irrespective of race, color or national origin. The Phoenix police department will not tolerate any violations of any person's civil rights. In relation to the community having a voice, I want the citizens of Phoenix to have a voice. This includes everyone, all individuals. The Phoenix police department will continue to concentrate its resources on crime suppression and violent crimes and property crimes. We have to enforce those decisions.

Greg Stanton: Today's decision by the Supreme Court is a reminder we can't have a patchwork of state laws on immigration around the country. We need Congress to act now, to act now on comprehensive immigration reform, including passage of the dream act, which is very important to this community in light of our demographic situation, it will help our economy. We also need continued support for strong border security.

Ted Simons: And joining us now with their perspective on today's Supreme Court decision is one of the strongest supporters of the bill, Arizona Republican representative John Kavanagh. Also here is former Democratic state lawmaker John Loredo, who opposes the measure. good to have you both here. Thanks for joining us.

Both: Thank you.

Ted Simons: I tell you, judging from the initial reaction and even, you know, as the day wore on, it sounds like everyone won. It's like a soccer tournament for 8-year-olds, we all go home with a trophy here?

John Kavanagh: In reality, this was a split decision. Before we ever got to court, three provisions of S.B. 1070, the harboring and transporting fugitives and others were declared constitutional. So we went in with three victories. Today, you had three defeats for my side. We lost three of the provisions, but we won the heart and soul of S.B. 1070. We won the section about stopping and questioning people who are suspected to be here illegally. That was always the major issue. That's what everybody spoke about. That was the big win.

Ted Simons: Big win?

John Loredo: No. I think it was a pretty stunning defeat. The reality is that without the other sections of law included, that section 2 piece that was ruled to be unlawfully enjoined is basic meaningless.

Ted Simons: What do you make of that? We just heard some legal analysis that says the same thing, that this is all wonderful, except it doesn't change anything.

John Kavanagh: Well, it's meaningless because President Obama has adopted a policy of not enforcing the federal immigration law to the extent that it should be. His policy is if you haven't committed a serious crime, that they're not going to pick up these people. We put this law together two years ago. This was the third part of a three-pronged attack against illegal immigration. We took away the benefits, we took the employment away, and then we wanted to increase enforcement by having state and local police aid the police. And that was the heart and soul of the bill. The three sections that were declared unconstitutional today created certain state crimes for being here illegally. That was put in because we predicted that at some point, the Obama administration might simply say we don't care if they're illegal, we are not going to pick them up. We tried to make that a state law so we could hold them. We didn't win on that one but we still have the stop and question.

Ted Simons: Heart and soul of S.B. 1070 vindicated.

John Loredo: Absolutely not. Look, the reality is the Obama administration is trying to prioritize where valuable resources are placed. And those valuable resources are placed on criminals, serious criminals that are doing serious damage to our community. What they're saying is that we're not just going to go spend critical resources, picking up gardeners and cooks and all of those things. We're going after serious criminals. 1070 was not about law enforcement. 1070 was political. It was politics.

Ted Simons: Well, if it was politics, and the goal was attrition through enforcement, something along make it so difficult for those folks that they will leave on their own, doesn't this, the one that was not struck down, doesn't that make it more difficult for folks?

John Loredo: Not necessarily. Because look, the reality is that unless a person has committed some type of another crime, you know, they can't just be racially profiled and questioned. They have to have committed another crime and if they did, 1070 has placed no part in whether or not they're prosecuted for the other crime. They will still be prosecuted for that crime.

John Kavanagh: First of all, they don't have to commit another crime to have the stop and question provision kick in. They have to be lawfully stopped for any reason, which could be a noncriminal traffic violation but to get to the politics, the politics of the Obama administration. This is an administration that basically, doesn't pursue the dream act, which everybody is for, or most people are for. It then deports a record number of people, and suddenly when you're on the eve of the election and they seem to be losing the Hispanic vote, they do a complete 180 to the point where now, if they pick up an illegal with a criminal record, they'll let them stay as long as it's not a serious criminal record. That's the politics.

Ted Simons: All politics I'm hearing.

John Loredo: Absolutely. Look, you have to remember this bill was written and pushed by the private prison industry that literally stuffs taxpayers dollars into their pockets for every head that that we put into a private prison. That's what 1070 was about. It was about enriching private prisons. It wasn't about law enforcement, it wasn't about anything other than politics and money.

Ted Simons: We've heard -- [ Overlapping Speakers ]

John Kavanagh: You have to save that theory for the x-files rerun that will be on later.

John Loredo: It's a proven fact.

John Kavanagh: By whom? [ Overlapping Speakers ] I was there when we said why do we want to do this? We want to do this because the federal government was not adequately enforcing federal immigration law in this country and we wanted to get state and local police officers into the mix to help.

John Loredo: This bill was written and approved at the special interest group ALEC’s committee. The chair of the committee was private prisons. They wrote this and pushed this out. This is about taxpayer’s money going to prisons.

Ted Simons: I know in the past, Republicans have been very strong against the idea of judicial activism and seeing what sticks. Isn't what Arizona did here? Critics are saying that's exactly what happened here, you lost, but you at least and I'm saying you meaning the Republicans for the most part, were hoping for the conservative court to be friendly.

John Kavanagh: I don't think we lost. Eight provisions, three of them initially were found constitutional. Today, three were unconstitutional, one passed, if you want to do the numbers, we're up four, and down three.

Ted Simons: I'm talking about three out of four today with the Supreme Court. That's not going to get you to the hall of fame.

John Kavanagh: First of all, we have more passed than were failed. We went in with three victories. It's four victories to three failures, and the one victory was the stopping and questioning, which the opponents made the entire argument up until today when we won it.

Ted Simons: What about that idea? This was a big deal until today, and now it's not a pig deal anymore?

John Loredo: The big deal is the Supreme Court ruled that states cannot create their own immigration law. That precedent stands forever now. And it shoots down any state that tries to create their own federal immigration law. They cannot do it. And this was a stunning defeat for the proponents of these types of laws because they're not going to be able to do that anymore. And also, I've got to say, the reality also is that this challenge was based on federal preemption. It was not based on anything else. The civil rights issue, to challenge section 2, is already in the court system and it will be challenged at the Supreme Court.

Ted Simons: I was going to bring that up. The ACLU, the class action business against racial discrimination and racial profiling, these sorts of things, that story hasn't been told yet.

John Kavanagh: That's because there has been no record gather. You can't do an as-applied challenge until you apply the law. What is the section for questioning? We took a 1960s, U.S. Supreme Court created tool called stop and question and we simply applied it to illegal presence in this country. We went to retired board patrol people and had them put together the lesson plans so that the same criteria used by the border patrol to stop and question people, reasonable suspicion, our own police use. If that's illegal, then the border patrol has been breaking the law for decades.

Ted Simons: Mirroring federal enforcement? The courts seem to say today you can't do that, but does that make sense?

John Loredo: What the court said is that how section 2 is applied on the street is what matters. Whether or not it's applied lawfully, that's the issue and that's the issue that's already making its way through the court system.

Ted Simons: Alright, we have to stop it right there. Good discussion gentlemen, good to have you here.

Ted Simons: Tuesday on "Arizona Horizon," learn about a measure that would keep a one-cent state sales tax designed to help education and job creation. And find out what's being done to make the valley a better place to travel by bicycle. That's Tuesday at 5:30 and 10:00 right here on "Arizona Horizon." That is it for now. I'm Ted Simons. Thank you so much for joining us. You have a great evening.