JURIST Guest Columnist Geoffrey Hoffman of the University of Houston Law Center says that although racial and ethnic profiling arguments were not addressed last week in Arizona v. United States, SB 1070 has significant civil rights implications for those of Latino descent…

Is it premature to call a place a “police state” where authorities are given authority to detain a person until their immigration status is verified, without regard to the length of the detention? Will a tipping point be reached if the US Supreme Court validates all (or even a portion) of Arizona’s SB 1070? The law requires among other things that local law enforcement determine status where a “reasonable suspicion” exists that the person is an undocumented alien.

The so-called “papers, please” law is an apt title because the law will require any person who is “lawfully” stopped, detained or arrested to prove his status, including a fortiorari his US citizenship. When he does not or cannot, then the person can be held for as long as it takes for the state to get confirmation from the federal government and return with a definitive answer — provided such information even exists in federal databases.

The problem is that many unintended persons, yes even law-abiding US citizens, will be adversely and unfairly affected if the Supreme Court gives the nod to Arizona to enforce federal immigration laws. There is no question, as at least one Supreme Court justice recognized at oral argument in the Arizona v. United States case last week, that many people may not even be listed in the federal immigration database but in actuality have a claim preventing their forcible physical deportation.

In answer to questioning from Justice Sotomayor, the US Solicitor General, the attorney for the federal government which opposes SB 1070, notified the high court that there is actually “no database” for “US citizens” but only for “passports.” Accordingly, if someone has never received a US passport then there is a very real chance that a person’s citizenship cannot be verified immediately by reference to any database currently in use. Does SB 1070 still sound so good?

Another legitimate fear is that persons who are subject to special status, such as asylum seekers, and others with valid claims for relief from deportation, like applicants for temporary protected status (TPS), victims of crime, battered spouses and victims of human trafficking may be in violation of a federal “failure to register” provision, a crime proposed under the state law which Arizona seeks to prosecute locally, as opposed to federally. The Solicitor General argued during the oral argument that these persons in these categories may be technically in violation of the already on-the-books 8 USC § 1306(a), which imposes a criminal penalty against persons who fail to register.

Even if such a registration program existed, which it does not for undocumented aliens, the federal government will not generally prosecute persons for failing to register if they are currently seeking viable relief from deportation through colorable and bona fide claims, such as asylum seekers and others. The problem is compounded because states are not going to know if someone is, for example, an asylum seeker because such information is protected as confidential and will not be released by the federal government. Are asylum seekers going to have to have to disclose the reasons for their asylum applications and prove to state courts they are truly afraid to go home in order to escape state liability for “failing to register?” This raises many foreign policy implications including violations of US treaty obligations under the 1967 Protocol to the Refugee Convention and the 1984 Convention Against Torture, of which the US also is a signatory.

The issue of racial or ethnic profiling did not even come up in oral argument, as Chief Justice John Roberts made clear right off the bat in his opening questioning. But racial or ethnic profiling is actually required by this law. What must the law enforcement authorities do if they are to determine whether they have “reasonable suspicion” someone is in the US illegally? Well, it cannot be just the failure to produce a certificate of citizenship, since most Americans have never even heard of one. It cannot be the failure to produce a passport, since almost no one travels with their passport on their person (if they even own one). So, what type of suspicion will be imposed?

The only answer is that law enforcement will now have to determine, after a “lawful” stop which people “look,” “act,” “speak” or “seem” to be “American.” If you do, I’m sure the Arizona authorities will let you go with just your “jaywalking” ticket. Did everyone catch that? This is a truly Orwellian or Kafkaesque situation. The law itself requires racial or ethnic profiling but the law also (very cleverly) expressly prohibits civil rights violations.

The rub is that the issue of racial profiling did not come up in the oral arguments because the current litigation involves solely a “facial” challenge to SB 1070. Since the version of SB 1070 under consideration specifically prohibits “on its face” impermissible racial profiling the issue can only be raised, so the argument goes, if the law “as applied” in its implementation raises such constitutional concerns. George Orwell would have loved this.

Assuming that the Supreme Court upholds SB 1070, in part or in whole, what next? How can we as a nation combat such laws even in light of the Supreme Court’s possible imprimatur? I see at least three options:

1. Change the law at the federal level with new legislation making explicit that states are preempted from enforcing federal immigration laws. We have such a clause as part of the Immigration Reform and Control Act (IRCA) of 1986, but it has a loophole for licensing and is limited to employment;
2. Enact contra-SB 1070s at the state level specifically providing that state actors are not permitted to interfere in any way with the priorities set by the federal government in their enforcement of the federal immigration laws, thus preventing states from enacting further “papers, please” laws; and
3. Pursue individual lawsuits or class actions to challenge SB 1070 and similar laws “as applied” either as violating the Equal Protection Clause, due process, or other federal laws which protect civil rights.

Geoffrey Hoffman is a Clinical Associate Professor and Faculty Supervisor of the University of Houston Law Center’s Immigration Clinic. He has published articles on international law, international human rights, and racial profiling in the Nova Law Review and Dalhousie Law Review as well as in the Loyola Journal of International and Comparative Law and the New York Law Journal.

Suggested citation: Geoffrey Hoffman, SB 1070 and the Impending Police State, JURIST – Forum, May 3, 2012, http://jurist.org/forum/2012/05/geoffrey-hoffman-immigration.php.