Arizona’s SB 1070—After the Supreme Court Ruling, What’s Next?

June 2012

The Supreme Court’s Decision

The U.S. Supreme Court handed down a mixed ruling on June 25, 2012, in the U.S. government’s challenge to Arizona’s notorious racial profiling law, SB 1070.  In a 5-3 decision, with Justice Kagan recusing herself, the court struck down three of the four Arizona provisions that the federal government had challenged, holding that these provisions are clearly preempted by federal law.

The fourth provision was Section 2(B), the “papers on demand” provision. The court reinstated Section 2(B) for now because, based on the information the court had on the record, it was unable to say that implementing the provision would definitely violate federal law or constitutional protections.  The Court specifically stated that the provision could raise constitutional problems, if, for example, someone were detained in order to verify their immigration status. The Court noted that Section 2(B) of SB 1070 has three distinct limitations that are included in the language of the Arizona law itself:  1) officers cannot engage in racial profiling to determine who they stop and ask for papers; 2) a person is presumed to have lawful status if they present a valid Arizona driver’s license or similar identification, and 3) the privileges of U.S. citizens, and civil rights of all people, must be respected.

The Court went on to say, “This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect” – taking a “wait and see” approach to the ultimate question of whether section 2B can be implemented in a way that does not violate the constitution.

What’s Next

The Supreme Court’s ruling has the effect of allowing the “papers on demand” provision of Arizona’s law to go into effect—but this will not happen immediately, and may never happen if other court challenges are successful.  The “papers on demand” provision cannot go into effect in Arizona unless and until the preliminary injunction (the ruling which initially stopped its implementation in 2010) is lifted by the lower courts.

The technical procedure goes this way: because the Supreme Court reversed the lower courts on the “papers on demand” provision, the case is now sent back, or “remanded,” to the Ninth Circuit, which must issue a new ruling consistent with the Supreme Court’s opinion in the case.  The Ninth Circuit may lift the injunction, or may send the case back to the federal district court, which will have to modify its own ruling and lift the injunction to comply with the Supreme Court’s decision.  This process can take several days or even weeks, depending on how quickly the Ninth Circuit and federal district court act.

While the case is sent back to the lower courts and they revise their previous opinions and order to comply with the Supreme Court’s decision, other challenges to Section 2B and other provisions of the Arizona law remain alive and pending.

The Friendly House case, brought by several civil rights organizations[1], remains pending in federal district court.  This case argues SB1070 is inherently unconstitutional because it cannot be implemented without engaging in racial profiling and discrimination.  Federal District Court Judge Susan Bolton did not enjoin Section 2B under the Friendly House case, however, because she had already enjoined Section 2B as the result of the U.S. government’s federal preemption challenge—the ruling which the Supreme Court has now remanded back to be reconsidered.

Judge Bolton could now issue a new injunction stopping the implementation of Section 2B if she determines that citizens and residents of Arizona would suffer irreparable harm if the law is allowed to go into effect, and that the civil rights groups challenging the law in the Friendly House case are likely to prevail in their racial profiling and discrimination challenge.

The results of these various court decisions suggest two possible scenarios in the coming days and weeks:

1. The Ninth Circuit and Judge Bolton revise their previous rulings and lift the existing injunction against Section 2B, allowing it to go into effect.
2. The Ninth Circuit or Judge Bolton lifts the current injunction, but Judge Bolton replaces it with a new injunction based on the Friendly House (civil rights) challenge. This would prevent Section 2B from going into effect while the Friendly House case makes its way through the courts.

In either scenario, the Friendly House case will continue to challenge SB 1070 in the courts.  If Section 2B goes into effect, lawyers will be able to supplement their arguments with actual cases of discrimination and profiling that will inevitably take place as the result of the law going into effect in Arizona. This case will make its way through the courts, and possibly all the way to the U.S. Supreme Court, which would then rule on the racial profiling challenge.  This process could take another year or more.

The U.S. Department of Justice may also decide to join the Friendly House case, bring a new case, or amend its existing case, based on actual cases of profiling and discrimination that take place in the event the law goes into effect.