On Immigration Law, Justices Willfully Blind to Impact

            Jose Antonio Lopez, an immigrant from Mexico, had lived in the United States for 11 years before his 1997 conviction in South Dakota for aiding and abetting possession of cocaine. After he served 15 months in prison, federal immigration authorities moved to deport Lopez, citing the federal law that makes an alien removable if convicted of an “aggravated felony.”

            South Dakota defined Lopez’s offense as a felony, but federal drug law treats the same crime as a misdemeanor. Immigration judges and a federal appeals court found the state law controlling and allowed the government to deport Lopez. At the Supreme Court, however, eight of nine justices joined in ruling in 2006 that the federal definition of the offense was controlling and that Lopez should not have been deported.

            Lopez’s case illustrates what judges, lawyers, and experts all agree is the extraordinary complexity of immigration law. The difficulty of understanding and applying federal immigration law explains why the cooperative program Congress created in 1996 requires special training before state or local police are formally designated to help enforce federal immigration law.

            Arizona legislators slid right by that problem in 2010 when they passed a law that effectively makes every rookie police officer or deputy sheriff in the state a junior federal immigration agent. And a majority of Supreme Court justices seemed equally oblivious last week to the difficulties – and the strong likelihood that the Arizona law will inevitably put many U.S. citizens and legal aliens in holding cells for indeterminate periods with no legal justification.

            The Arizona law, commonly known by its bill number, SB 1070, instructs state and local law enforcement officers in Arizona to check the immigration status of anyone they arrest, detain, or stop if they have a “reasonable suspicion” the individual is unlawfully present in the United States. Another section authorizes state and local police to arrest someone if they have probable cause to believe the individual is an alien who “has committed a public offense that makes the individual removable from the United States.” Two other sections of the law establish new state crimes for aliens to work or seek to work in the state or to fail to carry federal registration papers.

            On paper, the law may seem straightforward. And Chief Justice John G. Roberts Jr. was among those who opined that it is. As he put it to Solicitor General Donald Verrilli, Arizona simply identifies people “who are here in violation of federal law” and then leaves it to the federal government to determine whether to prosecute. “That’s why I don’t see the problem,” Roberts said.

            Lopez’s case shows that the federal government itself makes mistakes about whether an alien with a criminal conviction is deportable. A primer on immigration law prepared by the Ninth U.S. Circuit Court of Appeals takes more than 40 pages to cover the applicable case law. Try as they might, Arizona law enforcement officers are unlikely to master the intricacies and all but certain to detain many individuals who in fact are not subject to deportation.

            The immigration checks that police in Arizona are now supposed to perform at every arrest, every traffic stop, and every on-the-street stop-and-frisk are also certain to include many mistakes. Representing Arizona, attorney Paul Clement minimized the problem by suggesting that it only takes 10 minutes for police to check immigration status with the federal database. In fact, Verrilli said, the check takes 10 minutes, but only an hour on hold. All the while, the suspected immigration law violator is detained: maybe on the street, maybe in a holding cell. And, since there is no U.S. citizen data base to check, many citizens may be mistaken for immigrants unless carry their passports when visiting the Grand Canyon.

            Verrilli also pointed to the difficulty of making it a state crime to fail to carry alien registration papers. Some aliens lawfully present in the United States are not provided registration papers: for example, individuals seeking asylum or other protected status. Clement again minimized the problem by noting that the law punishes only “willful” failure to carry registration papers. But, again, the cop on the beat with no time to master the intricacies is likely to make mistakes.

            The biggest practical objection to the law, however, was taken off the table by Roberts at the start of the government’s argument. “No part of your argument has to do with racial or ethnic profiling, does it?” Roberts asked. “I saw none of that in your brief.” Verrrilli agreed.

            As a technical matter, Roberts is correct. In filing a so-called facial challenge to the law, the government argues in effect that it is structurally invalid even if enforced with scrupulous even-handedness. But, to borrow from Dickens, if the law makes that assumption, the law is an ass and an idiot — and needs to have its eyes opened by experience (Mr. Bumble, in Oliver Twist).

            No one with any sense expects Arizona police to zero in on visitors from Northern Europe who overstay their visas. Once this law goes into effect — and the indications from the justices are that the major parts will — Latinos will feel its impact, many of them U.S. citizens or lawful residents. And when that happens, the United States will be less than what the national anthem proclaims: the land of the free.