Earlier this month the Supreme Court for the United States heard oral arguments in the case of Arizona v. United States. This case relates to the famous, or infamous, depending on where you stand, Arizona law SB1070. This law has been highly controversial mainly because of its article 2(B) which obligates Arizona state police officers, upon reasonable suspicion, to check the immigration status of a person and to detain a person for the time it takes to make this inquiry. It takes little imagination to see how such a provision could lead to issues with racial profiling. Indeed, after Arizona Governor Janice Brewer signed SB1070 into law on the 23rd of April 2010, a wave of protests and initiatives arose to stop the law, with even Lady Gaga making a statement. Although the outrage directed towards racial profiling continued all the way up the streets in front of the Supreme Court courthouse last week, it did not make it inside. Even before Solicitor General Donald B. Verrilli could start his argument, Chief Justice Roberts pointed out what this case would not be about: racial profiling. Instead Verrilli’s argument would touch upon issues relating to preemption. A doctrine that precludes states from legislating in such a way that it would intervene with legislation made by the federal government. Unfortunately for the Solicitor General, his argument did not seem to come across. Justice Sonia Sotomayor at one point even bluntly asked “Putting aside your argument that this -- that a systematic cooperation is wrong -- you can see it's not selling very well -- why don't you try to come up with something else?” Again, unfortunately for the Solicitor General, he did not really come up with something else.

So what we see is that the outrage of the public was focused on social issues and especially the fear of racial profiling, but the oral arguments portray only a notion of the issues surrounding the ‘federalism argument’. Whether the federalism argument is enough for the Supreme Court to declare SB1070 unconstitutional will probably become clear in June.

Civil Rights Claims on their Way?

As things are now, it seems that all or most of the challenged provisions in the law will stand. This will mean that SB1070 will get to see some field action. Remember, SB1070 was facially challenged which means that all the controversial provisions in the law have not been in effect. Also many states such as Pennsylvania, South Carolina and Alabama have laws like SB1070 waiting for the Supreme Court’s ‘green light’ to be enacted. This will open the door for civil rights claims by individual citizens filed under the equal treatment clause of the fourteenth amendment, who feel that they have been harassed by state officials in the process of determining their immigration status. One of these cases will undoubtedly make its way to the Supreme Court again where it will, this time on a factual basis, be able to explore the civil rights boundaries of ‘crimmigration’. Does criminalization of immigration create a discourse where it is okay to racially profile and is that okay under the constitution? These are questions we will most likely see in the future.

Relevance for Europe

The outcome of the American debate is certainly relevant for Europe. The Netherlands, for example, is proposing to criminalize illegal residence which could create similar social consequences and effects to the anti-immigration laws in the US. Moreover, in Germany, a Koblenz Administrative District Judge decided that it is okay for the police to decide, solely on the basis of skin colour, who to submit to an identity check, if that person is travelling on a route which is frequently used to enter the country illegally. The debate about ‘crimmigration’ is also emerging there with human rights groups criticising these measures. It will be very interesting to see how the Supreme Court will decide on Civil Rights challenges towards SB1070 and the likes and how they will compare to, or influence, potential cases before the European Court of Human Rights.

Civil/Human Rights Lawyers beware. There’s work on the way.