One of our takeaways from yesterday’s Supreme Court hearing on Arizona v. United States is the serious disconnect between the discussion in the court room and how the law would actually play out on the ground.
Incredibly, at the start of the federal government’s case, Chief Justice Roberts told Solicitor General Donald Verrilli that he did not want to hear any arguments about racial and ethnic profiling. SB 1070 was born out of a fear that immigration is “on track to change the demographic makeup of the entire country,” as SB 1070 co-author Michael Hethmon recently admitted to the Washington Post. The law would undoubtedly be implemented through racial profiling, because there’s no way that police will run immigration checks on every single person they stop for any reason. But Justice Roberts shut down any discussion of those crucial issues yesterday.
Instead, the discussion included the type of stereotypes and lack of attachment to reality more often seen from anti-immigrant restrictionists than Supreme Court Justices. As Washington Post columnist Dana Milbank captured, Justice Scalia’s line of questioning was strikingly similar to the sentiments of a tiny group of SB 1070 supporters standing outside the Supreme Court, singing a song about the law. Milbank noted, “The melody was weak and the lyrics weaker. But the protest anthem was noteworthy in one respect: In tone and substance, it was nearly identical to the argument Justice Antonin Scalia made inside the court.” During the proceedings, Scalia compared civil immigration law violators to bank robbers and mocked the federal government’s attempt to set immigration enforcement priorities.
When Solicitor General Verrilli talked about the fact that this law was likely to result in “mass incarceration,” with clear foreign relations implications, Justice Scalia said that the problem could be solved simply by deporting everyone, instead of probing the practical implications for Arizona and U.S. taxpayers who would foot the bill for an even larger detention and deportation system. Scalia was channeling Governor Jan Brewer, it seems. National Public Radio legal reporter Nina Totenberg described:
Outside after the argument, Arizona’s governor was asked if, in fact, the state does have plans for a mass incarceration of the estimated 400,000 illegal immigrants in her state. Brewer paused for quite a long while and then replied: ‘If they’re breaking the law, there’s that possibility, I would assume.’
As the New York Times editorialized, the proceedings became “a debate about the statute as Chief Justice Roberts portrayed it, not the one that is actually law. The chief justice all but reduced the statute’s central purpose to information-gathering.” Chief Justice Roberts also echoed the far right’s point that the Obama Administration is not interested in enforcing immigration laws, stating at one point yesterday, “It seems to me that the federal government just doesn’t want to know who’s here illegally and who’s not.” The reality, as America’s Voice has discussed, is that the federal government continues to deport immigrants at record high levels. But deportations alone will not fix the broken immigration system. The fact is, “attrition through enforcement” is not any more practical or desirable a policy approach than mass deportation. The only solution is balanced and practical reform by Congress—not a state by state patchwork of laws that are impossible to implement on the ground.
No discussion of the rights of people perceived to be immigrants, including U.S. citizens harassed and forced to produce “papers” at traffic stops. No examination of the burden on local police, who would have to interpret and enforce complex immigration laws and face lawsuits from all sides when they mess it up. And no acknowledgement that mass incarceration and mass deportation are unrealistic fantasies—too expensive and too ugly for the country to implement– not practical options.
In June, the Supreme Court will decide whether to give the green light to discrimination and bad policies or not, but it won’t even have considered the impacts. What a shame.