As predicted, the U.S. Supreme Court rightly struck down three out of four provisions of Arizona's immigration enforcement law because they violated the constitutional supremacy of the Congress to create immigration law. However, the high court let stand, for now, the provision that served as a model for Utah's immigration enforcement law. Explicit in the court's decision, however, is the worry that these laws could lead to abuses, a concern that we share.
The principles involved in these cases are simple. The Constitution gives the federal government broad power to establish a uniform system of immigration laws, and its supremacy clause gives the feds authority to preempt state laws in this field. The wisdom of this policy is obvious, because it would make little sense for each of the 50 states to be free to set up their own systems of immigration.
However, the provision of the Arizona law that the Supreme Court upheld is grounded on the idea that state and local law officers should assist federal immigration officers in enforcement. Specifically, it provides that "For any lawful contact made by a law enforcement official … of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person. The person's immigration status shall be verified with the federal government pursuant" to federal law.
What could be wrong with that?
Opponents of the law argue that it is an invitation to racial profiling. For example, what amounts to "reasonable suspicion" that a person is an alien who is in the United States illegally? The color of his skin? His accent?
The law provides that a detained person is presumed not to be an illegal alien if he or she provides a valid Arizona driver license or similar identification, and officers may not consider race, color or national origin except as allowed by the U.S. and Arizona constitutions. Officials also must follow civil rights laws. Utah's law provides similar assurances.
But even at that, the high court expressed concern about whether officers would delay the release of detainees simply to verify immigration status. This could be unconstitutional if it occurred. However, the court's major concern was that the state courts have not yet had an opportunity to review this provision of the statute. The same would be true of Utah's law.
In short, this ruling is not the final word. How the laws are implemented could make all the difference.