Routine follow-up to Supreme Court’s decision on Arizona’s “papers” provision hailed as ‘major victory’ for anti-immigration groups

It is something of a trope among those with an interest in a specialized field that the “mass media” or the public-at-large generally does an atrocious job of translating subtle points about that field into laymen language. I actually don’t think this is true about the law: I think that the media usually does a pretty good job of getting the basic points of legal disputes out to the public. Even with politically-charged legal disputes, such as the Obama healthcare ruling earlier this year, with all of its complicated ins and outs, I think that the reporting on it did a pretty good job of explaining to the public what the difference is between the commerce clause and the taxation power.

That is why I am so baffled whenever big, lets not call them mistakes, but maybe rather glaring omissions, occur. Such is the case with the recent Arizona “ruling” that “upholds” the key provision of Arizona’s immigration overhaul – it is being hailed as a victory for advocates of more restrictive immigration policy, but in my opinion it is less than a tempest in a teacup. District Judge Susan R. Bolton’s ruling did not really “uphold” anything (unsurprising, since she is the very same judge who’s striking-down of that provision led to the Supreme Court case that tossed out most of the law but kept this very provision intact for now), it just reiterated a pretty uncontroversial point.

That point is that, when the Supreme Court says something, you do it.

When the Supreme Court ruled on the Arizona immigration law, advocates for immigrants and their families were disappointed by the perception that the “show-me-your-papers” provision, under which Arizona officials are entitled to demand proof of citizenship during criminal stops, had been “upheld.” But it wasn’t exactly upheld: it was rather put in the category of “let’s just let this one play out, and we’ll see how the cases go once the law is in effect.”

This all starts with the question of how it is exactly that laws are found to be racially discriminatory or not. Over the last few decades, courts have consistently applied a multi-tiered series of tests that applies anti-discrimination policy to state and federal laws differently depending on the text of those laws:

  • If a law is facially discriminatory (for example, segregated schools), the government has an extremely high burden to meet: the law is presumptively unconstitutional barring a showing that the law’s discrimination achieves a very specific legitimate state interest and that its discriminatory component is more or less essential and unavoidable to achieve that interest. This test cuts against both laws discriminatory against racial minorities, and laws that favor historically disadvantaged groups. Affirmative action programs, for example, must have extremely precise, express limitations in how long they last and what quotas or statistical balances they are trying to achieve, otherwise they are unconstitutional. Such policies may not be blanket or unqualified, though race may be used as one of many “plus factors” for admission to higher education, for example.
  • If the law is not facially discriminatory, meaning that its text does not expressly designate a certain race or other protected class for unequal treatment with other such groups, then the law must have a discriminatory effect, either in how consistently it is applied (in which case a judge can keep the law and just order law enforcement to enforce it more fairly) or in its ultimate unforeseen consequences (in which case the judge will ask the legislature to rewrite the law to get at the same state interest without necessitating the unforeseen discriminatory effects).
  • If the law doesn’t serve a valid government interest, than any discrimination either on its face or in its application invalidates it.

Since the Arizona immigration statute doesn’t single out any racial group, ethnicity, or national origin in express terms, it isn’t in the first category. And since probably any court in America would find that a coherent immigration policy is a valid government interest, it doesn’t belong in the third. So we’re left with the second.

The Supreme Court followed the same line of reasoning. The second category, you’ll note, requires discriminatory effects from the application of the law. Since the law had not yet gone into effect as of the Supreme Court’s decision, they did not rule on the question of its constitutionality. That does not mean that the Supreme Court upheld the law writ large. It means that the law wasn’t presumptively unconstitutional, as the first category is, and so it could only be found to be unconstitutional in its effects – and since the law hadn’t taken effect, there were no effects to investigate!

Judge Bolton did her job perfectly – she mimicked the Court’s reasoning to a T, which is sensible given that the Court’s ruling in that case was aimed at her own ruling. Like the Supreme Court, she did not declare that, in the face of discriminatory effects, the law stands up to scrutiny anyway. Rather, she just said that we’re still waiting for the evidence. The jury’s still out, as it were.

Advocacy groups for those unfairly targeted by discrimination laws see this kind of ruling as the opportunity for what’s called a ‘test case.’ Probably what will happen is that lawyers for immigration advocacy groups will be watching the Arizona police blotter carefully for arrests under the Arizona “papers” provision once it goes into effect, then swoop in to take those cases because then the courts will have to decide whether or not the law passes the standard of scrutiny applied to the second category above.

Until then, though, nothing has been upheld, nothing decided or tossed. We are in the wait-and-see session of this law. And as with the courts, you’ll have to wait to hear this skeptical jurist’s opinion until the cases start coming in.


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