June 28, 2012
In the coming days, the fight over Arizona's immigration law will be reignited by opponents who will seek a court order in a bid to thwart a U.S. Supreme Court decision that says police can enforce the statute's most contentious section.
Groups that have already filed a challenge to the 2010 law are expected to ask a lower court for a preliminary injunction that bars officers from enforcing a requirement that police check the immigration status of people they stop for other reasons.
Since the Obama administration failed in getting the requirement struck down on the argument that federal law trumps the state law, the groups will take a new tack: Attack the mandate on other grounds, such as the potential for racial profiling or unreasonably extended detentions for people whose immigration status is being verified.
But opponents face an uphill battle in pressing this strategy because the lower courts might want to wait until the requirement -- which won't take effect until at least July 20 -- is enforced to consider actual injuries from the law, rather than confront the potential for harm.
"My prognosis is that it will be difficult to prevail on a preliminary injunction at this time," said Kevin Johnson, law school dean at the University of California-Davis and an immigration law expert. "The Supreme Court suggested that it was going to allow this law to go into effect and then decide if any legal challenges held weight as applied to a particular case at hand."
The Supreme Court struck down three sections of Arizona's law Monday but upheld the immigration-status questioning requirement.
Without complaints of abuses in the enforcement of the requirement, opponents at this point would have to show that lawmakers intended to discriminate against Latinos when they passed the law.
But opponents could use a U.S. Department Justice report that alleged racial profiling in Maricopa County Sheriff Joe Arpaio's trademark immigration patrols to make the argument that a police agency that already inquires about people's immigration status allegedly uses discriminatory methods to enforce the law, Johnson said.
The Justice Department filed a lawsuit last month accusing Arpaio's office of racially profiling Latinos in immigration patrols and launching some patrols based on citizen letters that complained about people with dark skin congregating in a given area or speaking Spanish but never reported an actual crime.
The sheriff has long denied the racial profiling allegations, saying people are stopped if deputies have probable cause to believe they have committed crimes and that deputies later find many of them are undocumented immigrants.
The groups opposing the law haven't yet filed their new offensive in court, but believe the racial profiling allegations against Arpaio may prove useful.
"If you want to know whether (the questioning requirement) will cause racial profiling and illegal detentions, all you have to do is look at Sheriff Arpaio's record," said Cecillia Wang, director of the American Civil Liberties Union's immigrants' rights project.
The ACLU is one of many groups seeking to overturn the law and is pushing a separate lawsuit by a small group of Latinos who allege that Arpaio's officers had racially profiled them. That lawsuit is scheduled for trial on July 19 in federal court.
Matt Benson, a spokesman for Gov. Jan Brewer, who signed the measure into law and brought the case to the Supreme Court, said opponents had two years to win an injunction on racial profiling grounds but didn't do so.
Benson said the critics don't have confidence that officers will enforce the law without stepping on people's rights. "We believe that the law is in harmony with the Constitution and can be enforced in harmony with the Constitution," Benson said.
Arpaio's office said the Justice Department's allegation against his office of systematic discrimination against Latinos hasn't been proven. As for the sheriff, he wasn't pleased by the possibility that opponents could use the Department of Justice's case against his office as fodder for trying to sink the Arizona law.
"Just let the courts decide whether there is racial profiling, not the experts or those that have their own agenda," Arpaio said.