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.