Patricia and Pablo held arms outside the U.S. Supreme Court, hours before the highest tribunal in the nation heard arguments on the injunction of SB 1070, a controversial Arizona law that would subject undocumented immigrants like them to incarceration and penalties.
“It feels good to be here on behalf of all of those who can’t come or are too afraid to come,” said Patricia who traveled with her husband from Arizona.
Patricia felt the impact of SB 1070 when her daughter decided to move to California out of fear and took away her grandchildren after 11 years of living in the state they called a home. She fears the situation will replay for others if SB 1070 goes into full effect.
Emotions ran high outside the hearing, with chants and signs of “Stop SB 1070” on one side and counter protesters with the message “Arizona SB 1070 mirrors federal law” on the other side.
Inside the courtroom, the Justices paid particular attention to the provision of SB 1070 that mandates local police to ask about someone’s immigration status during a traffic stop.
At times they seemed skeptical of the federal government’s argument that mandating local police to do that would be in conflict with federal immigration authorities jurisdiction, since the federal government can still decide whether or not they want to take an immigrant into custody.
“It seems to me the federal government doesn’t want to know who is here illegally or not,” said Chief Justice Roberts.
Justice Anthony Kennedy, considered the swing vote in the mix, didn’t seem to buy into the federal government argument either.
"Can we say that a state must accept within its borders a person that is illegally present under federal law?, he asked.
The Obama administration's Solicitor General Donald Verrilli focused on the issue of federal pre-emption in the enforcement of immigration law and another provision of SB 1070 that makes it a state crime to be in Arizona without documents.
He said that portion would lead to “massive incarceration” of undocumented immigrants but also result in asylum seekers and victims of domestic violence in the process of getting a visa getting caught in the dragnet.
"On the day I signed SB 1070, I called it ‘other tool for our state to use as we work to solve a crisis we did not create and the federal government has refused to fix,” said Arizona Governor Brewer in a prepared statement after she attended the hearing.
SB 1070 partially went into effect in July 2010 after a federal judge blocked four key provisions of the law following a Department of Justice (DOJ) lawsuit. The Ninth Circuit District Court of Appeals upheld the decision, which prompted Brewer to challenge it all the way to the Supreme Court.
The potential impact of a ruling on SB 1070 for other states with similar laws like Alabama, Georgia, Utah, Indiana, and South Carolina will depend on how the eight justices vote and the extent of their opinion.
Justice Elena Kagan recused herself from the case, possibly because of her role as a former solicitor general for the Obama administration. This opens the door for a 4-4 split decision, in which case the lower court ruling would stand. If that occurs, the Supreme Court would not issue an opinion elaborating on its reasoning, therefore not leaving legal precedent for other states to follow.
Justices are expected to decide next June.
On Tuesday, Senator Senator Charles Schumer (D-NY) who presided a hearing on the impact of SB 1070 said that if the Supreme Court didn’t find the bill unconstitutional he would introduce legislation to prevent states from imposing their own civil and criminal penalties on immigration issues.
Even if SB 1070 is taken off the books, pro-immigrant activists are concerned about federal immigration policies that they say are having a similar effect on communities.
“We still have policies like 287(g) and Secure Communities across the country that allow local authorities to continue to act as immigration agents,” said Luis Avila, former president of Somos America an Arizona based organization that advocates for immigrants rights. “If we want to have real conversation about a real solution, we have to start talking pragmatically about immigrants living already here and stop harassing and intimidating families because of their status.”
Jack Martin, a special project director for the Federation for American Immigration Reform (FAIR), a group that has supported several bills to fight illegal immigration at the local level was optimistic that the law would be upheld.
“The way to go is to have a uniform law for the entire nation, unfortunately there has been a deadlock here in Washington with regards to efforts to adopt immigration reform and as a results states have been force to take action on their own,” he said.
In that respect Martin’s ideas line up with those of undocumented immigrants like Patricia and Pablo who want to see a federal answer to their situation. The difference is in how.
“I hope justices find it in their heart to do something about this. Because this is making families and children suffer, the community and the economy,” said Patricia.