By Matt O'Brien
Monday's Supreme Court ruling striking down much of Arizona's immigration law sends mixed signals to politicians in California and elsewhere experimenting with their own immigration legislation and to police officers who pull over someone they suspect is in the country illegally.
"What the court made very clear is that if states or local governments try to enact their own immigration laws, they cannot do that," said Bill Ong Hing, professor at the University of San Francisco School of Law. "States cannot have their own little enforcement plans."
But by upholding the provision in Arizona's SB 1070 that allows police officers to probe the immigration status of the people they stop, some fear that police officers will interpret the ruling as a license to question immigrants, not just in Arizona but throughout the country.
"The part of it that troubles me the most is allowing what we call the 'papers please' provision," said U.S. Rep. Barbara Lee, D-Oakland. "I'm hoping that doesn't open the doors to legally sanctioned racial profiling."
Some in law enforcement echoed those concerns.
"You're going to see increased attention on people who are Latino or who look Latino," said San Francisco District Attorney George Gascón, a former police chief in the Arizona city of Mesa. "Immigration laws are extremely complex and the average police officer is not going to be an immigration expert."
In California, where 58 county governments and sheriffs take widely different approaches to immigration politics, the ruling could send a message to police officers that checking a person's nationality is OK.
"They've already had the discretion of inquiring (about immigration status)," said San Diego immigration control activist Ted Hilton. "Now they can take it a step further and detain someone."
The court ruled that mandatory checks do not interfere with the federal government's immigration enforcement because "consultation between federal and state officials is an important feature of the immigration system."
However, the court said it could revisit the provision once more information is available about how it is working.
"There is a basic uncertainty about what the law means and how it will be enforced," wrote Justice Anthony Kennedy in the majority opinion.
Hilton drafted a state ballot measure that would have copied parts of the Arizona law, but the initiative -- backed by the American Legion -- has failed to get enough signatures before the deadline later this week.
While some imagined a wave of state and local immigration crackdowns copying Arizona's, the ruling could also encourage liberal states, such as California, to pass laws taking a more lenient approach to illegal immigration, said Stephen Yale-Loehr, a law professor at Cornell University.
San Francisco and Richmond are among several cities that issue city ID cards to anyone who asks, allowing undocumented residents to have a form of identification.
"I think those are safe. They're not attempts to regulate immigrants," Hing said.
Chief Justice John Roberts joined Justices Ruth Bader Ginsburg, Stephen Breyer, Anthony Kennedy and Sonia Sotomayor in striking down much of Arizona's 2-year-old law, including provisions that made it a state crime for illegal immigrants to live and seek work in the state and allowed police to arrest them without a warrant.
Many were expecting a tougher decision from the Supreme Court, said Tamar Jacoby of employer advocacy group ImmigrationWorks USA. The ruling is unlikely to open the floodgates to another wave of crackdowns copying Arizona's, but it is also unlikely to inspire a wave of more lenient legislation, she said.
"This puts the burden back on the feds," Jacoby said. "It says there's not as much room as some people have been hoping for state action."
Dissenting Justices Antonin Scalia, Clarence Thomasand Samuel Alito wanted to uphold more provisions of the Arizona law.
The mood had already changed before the ruling as fewer lawmakers had been introducing tough immigration laws as in years past, fearful that they would scare off investors and workers, Jacoby said.
"You have cooler heads emerging in the states," Jacoby said.
California lawmakers can lead the nation by creating a "firewall" against racial profiling and immigration crackdowns, said Angelica Salas of the Coalition for Humane Immigrant Rights of Los Angeles. One bill by Assemblyman Tom Ammiano, D-San Francisco, would limit local jailers from keeping illegal immigrants for federal agents if the immigrants aren't safety threats.
"California is leading the way from a different perspective," she said. "California's doing the right thing in recognizing immigrants are part of the fabric of their communities."
But some of those measures could be nixed on the same arguments the Supreme Court used to overturn most of the Arizona law.
Assemblyman Manuel Pérez, D-Indio, earlier this year introduced a bill that would allow California to grant legal residency and work permits to undocumented agricultural and service workers, though the lawmaker later put the bill on hold to study it more. The court would likely view such a law as interfering with the federal government's role in regulating immigration, Hing said.