Under current doctrine, the SB 1070 case came out the right way. I hate Section 2(B) – the infamous “papers, please” provision – but it isn’t unconstitutional for state officials to enforce federal law (even federal civil law, which includes immigration) and then turn offenders over to federal officials. Generally speaking, it isn’t an issue, especially in immigration contexts. Why should state and local law enforcement worry about chasing after federal civil offenders such as, say, tax evaders? And police departments are morons if they want to risk local cooperation by inquiring about immigration status. But this is Arizona.
The touchstone is that this case was a “facial” challenge, which under current doctrine means that in order to succeed, plaintiffs have to show essentially no circumstances under which the application of the law would be constitutional. I think that that standard for facial challenges is terrible, but this group of yahoos isn’t going to revisit it any time soon.
Thus, the new phase is developing an “as-applied” challenge to the law. That means answering three key questions:
1) What will the feds do when Arizona cops start presenting them with hundreds of Latinos to incarcerate? This is an important place to pin down the administration: if and when Arizona police start giving you just immigration suspects, tell them to release them.
2) What kind of monitoring, both DOJ and private, needs to be done in order to present the as-applied challenge to SB 1070?
3) What precisely will plaintiffs need to show to enjoin application of Section 2B? Arizona has something like one-third Latino population. I would guess that virtually all of the white and Indian population are citizens. (I don’t about Asians.). So if all the people turned over to the feds are Latino, is that good enough? What if it’s two-thirds? Will Arizona police need to write specific guidelines? If they don’t, is that good enough?
This battle is just beginning.