Tuesday, June 26, 2012

Arizona ruling leaves Texas lawmakers little leeway on police enforcing immigration law

While the US Supreme Court yesterday struck down most of Arizona's law targeting illegal immigrants (see the opinions), the court declined to rule on one key provision [§2(B)] - whether police could be required to check immigration status of people they detain - saying the issue wasn't yet ripe for federal review. Some Texas lawmakers are saying that opens the door for Texas to enact a similar statute. According to the Fort Worth Star-Telegram ("Texas legislators likely to address immigration in wake of Supreme Court ruling," June 26)
Several state lawmakers are expected to revive the push for a bill similar to Arizona's "show me your papers" law, even though justices said in the Arizona ruling that officers couldn't arrest people on suspicion of immigration crimes. Last year's efforts to pass such a bill in Austin failed.

"The 'stop and ask' measure is fair game in the next session," said Bill Miller, an Austin-based political consultant who works with both Republicans and Democrats. "It absolutely will be proposed in Texas."

Read more here: http://www.star-telegram.com/2012/06/25/4058166/texas-legislators-likely-to-address.html#storylink=cpy
The Dallas News offered a similar assessment ("Arizona ruling opens door for Texas lawmakers," June 26):
Rep. Debbie Riddle, R-Tomball, said the ruling has underscored that Texas should have a law requiring police to check the immigration status of anyone legally detained.
“The fact is the Supreme Court upheld the most controversial factor,” she said, referring to a provision that forces police to ask those under arrest about immigration status if there is reason to suspect they are in the U.S. illegally.
But Rep. Riddle significantly overstates the leeway granted in the SCOTUS ruling. The court did NOT say such inquiries were constitutional but instead declared that: "It was improper to enjoin §2(B) before the state courts had an opportunity to construe it and without some showing that §2(B)’s enforcement in fact conflicts with federal immigration law and its objectives." (Emphasis added.) In other words, that part of the law MIGHT be unconstitutional depending on how it is implemented, but until Arizona actually uses the statute and their state courts interpret its limitations, it's premature for SCOTUS to rule on the question. They didn't say the practice is okay, they said they weren't going to decide right now, which is quite a different thing.

So under what circumstances might such detentions be ruled unconsitutional? The court emphasized a point often lost in immigration debates: "As a general rule, it is not a crime for a removable alien to remain in the United States." Indeed, the court explicitly overturned authority under the Arizona law for "state and local officers to make warrantless arrests of certain aliens suspected of being removable," saying that portion of the statute "creates an obstacle to federal law." The Arizona statute, said the SCOTUS majority, "attempts to provide state officers with even greater arrest authority, which they could exercise with no instruction from the Federal Government. This is not the system Congress created." Instead, according to Justice Kennedy's opinion:
The federal scheme instructs when it is appropriate to arrest an alien during the removal process. The Attorney General in some circumstances will issue awarrant for trained federal immigration officers to execute. If no federal warrant has been issued, these officers have more limited authority. They may arrest an alien for being “in the United States inviolation of any [immigration] law or regulation,” for example, but only where the alien “is likely to escape before a warrant can be obtained.”
So Arizona police can ASK about immigration status, for now, but they cannot arrest someone solely because of it, even if they entered the country illegally, except under circumstances prescribed by the feds.

Indeed, the court said it's possible even inquiring about immigration status MAY be unconstitutional but that it was premature to rule on the issue. Wrote Justice Kennedy: "It is not clear at this stage and on this record that §2(B), in practice, will require state officers to delay the release of detainees for no reason other than to verify their immigration status. This would raise constitutional concerns. And 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."

So the court advised Arizona it would "raise constitutional concerns" if immigration checks "delay the release of detainees for no other reason than to verify their immigration status." But isn't that inevitable? Say I'm stopped on the street or at a traffic stop, an officer asks my immigration status, and I exercise my right to remain silent: Wouldn't verifying my immigration status by definition extend my detention longer than would otherwise be the case? Because the Arizona law hadn't yet taken effect, there were no facts before the court to say so, but there's little doubt those questions will be raised as soon as it's implemented. I have a hard time seeing how verifying immigration status wouldn't "delay the release of detainees." How could it not?

And if in most cases police can't arrest someone regardless of their immigration status, as Kennedy's opinion makes clear (since "it is not a crime for a removable alien to remain in the United States"), what will they do with information about immigration status after they inquire?

Given these open questions, Texas legislators would be wise to let Arizona's legislation play out in the federal courts before following their lead. The practical and constitutional questions around such a practice remain far from resolved.

17 comments:

MidCoast Kid said...

Thanks for clarifying the ruling on the Arizona law. I, for one, can't imagine that a state would have any jurisdiction over immigration policy. It's a question of nationality, not "state-ality."

A Texas PO said...

I've never understood the "show me your papers" statute in this law. How many of us can prove that we're US Citizens at any given time during the day? Just because you have a state-issued ID or DL doesn't mean you're a citizen or are in the state legally. Now, if the feds issued a national ID, maybe things would be different.

Hook Em Horns said...

First, I didn't care because only sex offenders had to "show their papers."

Then, I didn't care because only Hispanics had to show their papers."

How long before we are ALL required to show some kind of "papers" to law enforcement on demand?

Those days are coming and FAST!

Anonymous said...

"I've never understood the "show me your papers" statute in this law."

"Then, I didn't care because only Hispanics had to show their papers."

Aliens are required to carry their alien registration documents or other applicable records at all times – in federal law that’s under 8 USC sec.1304 and 8 USC sec. 1306.

Anonymous said...

Thats one reason I keep about a half roll of toilet paper in my glove box or under the seat. I'm always ready to show them my papers.

Scott in South Austin said...

Rep. Debbie Riddelle is the same legislator who had an illegal Mexican immigrant as her house keeper. She can't sling horseshit in this discussion. Fricking hypocritical asshole.

Gritsforbreakfast said...

Scott in South Austin, please restrict yourself to language you'd be comfortable using in conversation with your grandmother. Even if you don't respect Rep. Riddle, try to respect the office.

That said, you misremember. Riddle filed a bill that EXCLUDED private citizens employing housekeepers and yard workers from a bill targeting employers of undocumented immigrants, but a quick Google search found no report that she had employed undocumented workers.

5:08 said, "Aliens are required to carry their alien registration documents or other applicable records at all times." But I'M not, and presumably Arizona will ask EVERYBODY for their papers. It's not like people walk around with the word "Immigrant" stamped on their foreheads.

Anonymous said...

One's state driver's license is fast becoming the "internal passport" of America. All but required for mobility due to limited public transportation in many communities and with the license incorporating embedded data for ID purposes and the extensive documentation required to obtain one, national ID in not necessary to fulfill that infamous phrase, "Papers, please". :~(

A Texas PO said...

Anon 5:08pm: That's all fine and dandy, but US citizens aren't required to carry their "papers" because no such papers exist. So presumably, if I have brown skin and an accent with no green card or temporary work visa, I can be hauled in under the original language in the law. You don't see a problem with this? What I see from the SCOTUS ruling is that they are telling law enforcement that they are not to handle immigration matters except doing what they've always done before: If you arrest someone for some law violation, then you can check their immigration status. We don't need more statutes in any state to make this happen because EVERY jail already does this during the book process.

rodsmith said...

nice grits!

"Scott in South Austin, please restrict yourself to language you'd be comfortable using in conversation with your grandmother. Even if you don't respect Rep. Riddle, try to respect the office."

but it is possible to do both!

i once had a cop try and push his way into my home looking for my brother! he got informed i'd kill him as an armed intruded the second his foot stepped over the threhshold. little twit tried to give me that baloney about respecting the law....told him i had plenty of respect for the law and the uniform and that was why i would put the bullet right though his empty head between his eyes...and it would

NEVER TOUCH THE UNIFORM!

fortunatley for him at that point my neighbor the City MAYOR walked up wanted to know what was gong on

Anonymous said...

@ Texas PO......."If you arrest someone for some law violation, then you can check their immigration status. We don't need more statutes in any state to make this happen because EVERY jail already does this during the book process."

While you were asleep........http://blog.chron.com/txpotomac/2012/06/key-texas-lawmaker-challenges-obama-administration-on-immigration-enforcement-in-arizona/

Gerry Nance said...

Every person in the USA over the age of 10, should carry ID of some sort.I use age 10, because military dependents cannot get ID until age 10. See the DHS I-9 Form for guidance, 10 year olds can get a library card and student ID from school. Carrying an ID is a responsibility that children should be taught. The first thing you learn in the military is to carry ID at all times, to work, shop, on or off post.

Gerry Nance said...

I just counted five (5) photo-ID I carry all the time: driver license, retired military ID, VA medical card, passport, gym card, plus a SSN card. However, a cop better provide a good articulable reason for wanting me to comply with a request to see my ID. If I am operating a motor vehicle, then I'll present my DL, else I might show an expired passport.

Gritsforbreakfast said...

Gerry, you make the normative statement that every person 10 and above "should" carry ID. If someone else says they "shouldn't," what's your argument as to WHY?

For example, I often don't carry my wallet when I go to the gym because I don't want to bother with the lockers. Please explain: What value would taking ID with me bring TO ME, not the government but the individual on whom you want to impose the requirement, especially since @ 10:23 you said you want to limit the government's ability to check your ID?

Anonymous said...

Yeah, and how is it a "responsibility"? A responsibility to the govt? I think you mean a "duty".

~
L
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Anonymous said...

The government wants every citizen to prove they have insurance but people don't have to prove their citizens.

Anonymous said...

Isn't it already a requirement that we must carry ID with us at all times. The police can give you a ticket for not carrying ID.