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In Mixed Ruling, Supreme Court Overturns Parts of Arizona’s S.B. 1070, Upholds “Show Me Your Papers”

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The Supreme Court has overturned key parts of Arizona’s anti-immigrant law S.B. 1070 but upheld the law’s controversial “show me your papers” provision. On Monday, the court struck down three of the law’s four provisions that subject undocumented immigrants to criminal penalties for seeking work or failing to carry immigration papers at all times. In each case, the majority said those powers rest with the federal government, not with Arizona. But in a unanimous decision, the justices upheld the law’s controversial Section 2B, which requires police to check the immigration status of people they stop before releasing them. We’re joined from Washington, D.C., by Marielena Hincapié of the National Immigration Law Center, a group that has filed a civil rights challenge to S.B. 1070 and similar laws in five other states, and from Phoenix by Viridiana Hernandez, an undocumented immigrant who would benefit from the Obama administration’s recent order allowing undocumented youth to apply for a two-year stay from deportation. “The fact that I can leave my house and tell my mom, 'Mom, I'll be back tonight,’ does not change the fact that she can leave the house and not tell me the same thing,” Hernandez says. “That’s why we continue fighting, because our families are still at risk, and our communities are still at risk. And so, there hasn’t been [a] win unless our whole community wins.” [includes rush transcript]

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This is a rush transcript. Copy may not be in its final form.

NERMEEN SHAIKH: On Monday, the Supreme Court issued its long-awaited ruling on Arizona’s anti-immigrant law known as S.B. 1070. The court struck down three of the law’s four provisions that subject undocumented immigrants to criminal penalties for seeking work or failing to carry immigration papers at all times. In each case, the majority said those powers rest with the federal government, not with Arizona. But in a unanimous decision, the justices upheld the law’s controversial Section 2B, which requires police to check the immigration status of people they stop before releasing them. Arizona’s Republican Governor Jan Brewer hailed the decision to uphold what she called the “heart of the law.”

GOV. JAN BREWER: So today is a day when the key components of our efforts to protect the citizens of Arizona, to take up the fight against illegal immigration in a balanced and constitutional way has unanimously been vindicated by the highest court in the land.

NERMEEN SHAIKH: Arizona Governor Jan Brewer. Critics of the controversial “show me your papers” provision say it puts people of color at risk of racial profiling. The Justice Department has already sued Maricopa County Sheriff Joe Arpaio for engaging in a, quote, “pattern or practice of unlawful discrimination” aimed at Latinos. Meanwhile, Arpaio said Monday’s ruling would have little impact on how his officers operate.

SHERIFF JOE ARPAIO: I think this is a good section that has been upheld. I would have liked to see where we would have the authority to arrest illegal aliens just by being here illegally and book them into our jails, but that’s not going to happen. But I think this sends a message that we will be involved in enforcing the illegal alien laws and our police officers will be able to at least try to determine if they’re in this country illegally.

AMY GOODMAN: After the Supreme Court’s ruling, the Justice Department set up a hotline to report potential civil rights concerns related to S.B. 1070. Federal immigration officials followed by suspending joint agreements in Arizona, known as 287(g), that deputize state and local police to detain immigrants. The move prompted calls to end the Secure Communities program, which uses arrest records to target so-called criminal aliens but largely deports immigrants accused of minor offenses.

Well, for more on reaction to the S.B. 1070 decision, we’re joined by two guests. In Washington, D.C., Marielena Hincapié is executive director of the National Immigration Law Center. Her group is moving forward with its own civil rights challenge to S.B. 1070 and similar laws in five other states. The suit is filed jointly with MALDEF and the ACLU, which announced on Monday it has an almost $9 million war chest to battle any copycat legislation.

And in Phoenix, Viridiana Hernandez is an undocumented immigrant who has lived in Arizona since she was one year old. She recently turned 21. Hernandez was arrested in March protesting police collaboration with immigration authorities. She now canvases neighborhoods to get out the vote, even though she herself cannot cast a ballot. She’s a student at Grand Canyon University. She would benefit from the Obama administration’s recent order allowing undocumented youth to apply for a two-year stay from deportation.

We welcome you both to Democracy Now! Marielena Hincapié, let us begin with you. The significance of the Supreme Court ruling?

MARIELENA HINCAPIÉ: Thank you, Amy, and thank you for the invitation.

So, as you mentioned at the top of the hour, the Supreme Court’s decision has struck down three out of the four provisions of S.B. 1070 and sends a very strong message not just to Arizona, but to other states that are considering similar laws. However, we believe that the fact that the Supreme Court has upheld Section 2B, the racial profiling provision, really has put the Supreme Court on the wrong side of justice. We know from Alabama, which is the only other state where we’ve seen a similar provision actually go into effect since last September, when the district court did not block that provision from going into effect—we’ve seen the harm that this has caused. We’ve seen the racial profiling and discrimination that affects not just undocumented immigrants, but all people of color.

NERMEEN SHAIKH: Marielena, how do you explain the fact that on 2B, in fact, the judges’ decision was unanimous?

MARIELENA HINCAPIÉ: Well, unfortunately, you know, I think there’s some—the fact that the majority of the court reached that decision, and also when you look at the decision and see that they really struggled with what to do, whether to strike it down completely, they basically have also said that while they think that at this time they don’t have sufficient evidence—and remember, the only issue before the Supreme Court was the issue of whether it was preempted. You might remember from the oral arguments, Chief Justice Roberts actually framed the discussion and asked the solicitor general from the United States, ensuring that the argument was not going to touch upon racial and ethnic discrimination. So, in the decision, they have—

AMY GOODMAN: Explain what you mean by “preempted.”

MARIELENA HINCAPIÉ: The main argument that the Department of Justice had before the Supreme Court was arguing that only the federal government, under the Constitution and under the Supremacy Clause, has the authority to regulate and to create immigration law. And that’s for a whole host of reasons, because otherwise we would have 50 states with different immigration laws. For foreign policy reasons, it’s important for the United States, as a sovereign nation, to regulate who comes in and who needs to leave the country. And that was the only issue before the Supreme Court. And in the decision yesterday, the Supreme Court does note that it may—Section 2B may be found unconstitutional on other grounds. And in our case, the Friendly House case, which is the civil rights lawsuit and the class action lawsuit pending, which we are co-leading, we have a number of other constitutional claims, and that’s why we do believe that eventually Section 2B will be struck down.

NERMEEN SHAIKH: Could you explain, Marielena, in a little bit more detail the class action lawsuit that your organization is involved in?

MARIELENA HINCAPIÉ: Sure. So we filed our class action lawsuit—it was actually the first lawsuit against S.B. 1070—back in July of 2010, and that was before the Department of Justice filed their lawsuit, as well. And in our case, we are basically arguing that all of S.B. 1070 is unconstitutional and that it should be struck down because it violates the First Amendment right in terms of individuals’ ability to assemble—for example, day labor provisions that would impact that—the Fourth Amendment rights in terms of when law enforcement gets to stop and in terms of searches and seizures. We believe that it also violates the Fifth Amendment, due process violations, and the 14th Amendment with respect to equal protection. And that really, at the end of the day, is at the crux of Section 2B, which is that law enforcement officials across the country—and, in fact, even Secretary Napolitano herself, back in July of 2010—said that this provision cannot be enforced without racial profiling. It cannot be done in a racially neutral way.

NERMEEN SHAIKH: Marielena, you’ve said that one of the effects of the decision taken by the Supreme Court is that it’s likely to increase voter turnout by Latinos in the upcoming presidential election. The Supreme Court’s decision on S.B. 1070 touches on a number of key issues for many voters. On Monday, SEIU’s International Secretary General Eliseo Medina said many Latinos in November would vote against lawmakers who support restrictive immigration laws.

ELISEO MEDINA: We will in fact say this law is wrong, it will be overturned by the power of our votes, and we will make sure that we have an immigrant system that will do justice to a country of immigrants.

NERMEEN SHAIKH: Obama said Monday he would use the court’s decision to push for congressional action on a broader overhaul of immigration laws. Meanwhile, Republican presidential candidate Mitt Romney said the Supreme Court, quote, “should have given more latitude to states on immigration.” Can you say a little about the effect of these decisions on the elections, Marielena?

MARIELENA HINCAPIÉ: Well, I think the decision from the Supreme Court, as I mentioned earlier, sends a strong message to the states about what is constitutional and what is not; however, by upholding Section 2B, I think that we in the immigrant community need to see this as a personal call to action. And, in fact, I would say that every person in this country that cares about our Constitution and our fundamental values and that sees that we need to take our country back onto a path that’s based on policies of equality and hope really need to get the vote out. And we need to take this to the ballot and vote people out who support laws like S.B. 1070 and racial profiling.

AMY GOODMAN: Viridiana Hernandez is also with us, in Phoenix. Viridiana, first, your reaction to the ruling, and then I want to talk about your own situation.

VIRIDIANA HERNANDEZ: Thank you. Well, as an undocumented student, when I first heard the—what happened in the ruling, you know, it was just a shock, because it’s what it is, like something just happened, and although a lot of things, you know, make it, in a way, legal, like it doesn’t make it right. And we’ve seen it throughout our history, so many things that have been legal, such as segregation, it doesn’t make things right. And I know that that’s something that our community feels and that me, as an undocumented student, knows that this is a wrong thing that just happened to our community, but it just gives us fuel to continue and fight even harder.

AMY GOODMAN: You have been an undocumented immigrant, or, as the DREAMers movement calls it, “undocumented American,” since you were one year old in Arizona. You just turned 21. You’ve taken great risks. You could be deported, but you were arrested in March protesting police collaboration with immigration authorities. Can you talk about your own case, why you’re taking these risks? Now, with President Obama’s announcement, the executive order, you could become—your situation could allow you to stay in the United States.

VIRIDIANA HERNANDEZ: The risk that I took that day to get arrested, I mean, it’s a risk that we take every day. Like, I could be arrested going from school to my house, from the grocery store to my house. So these are not new risks we’re taking. These are risks that are now more visible and are challenging, are challenging the system that has been set up in Arizona and just throughout the United States. And so, it’s a risk that we take every day already, and so it’s like our duty to make sure that people are aware of, like, all the things that happen behind the scenes, because once we challenge them, they’re just a lot harder to happen.

And what Obama said, there’s been a lot of things said throughout the last few years, and it’s up to us to make sure that that actually becomes a reality. But even then, like, the fact that I can leave my house and tell my mom, “Mom, I’ll be back tonight,” does not change the fact that she can leave the house and not tell me the same thing. And that’s why we continue fighting, because our families are still at risk, and our communities are still at risk. And so, there hasn’t been no win unless our whole community wins.

AMY GOODMAN: There is one man who has affected your and many immigrants’ lives in Arizona more than any other, and he is Maricopa County Sheriff Joe Arpaio. After the Supreme Court upheld the provision of Arizona’s law requiring police to check the immigration status of anyone they stop, he was asked how he’d ensure his officers respect people’s civil rights. This was his response.

SHERIFF JOE ARPAIO: We do not racial profile. I think we have the most trained law enforcement office in the country, because ICE has trained 100 of my deputies—of course, they took that authority away—plus a hundred of my officers have been trained, five-week courses, federal-trained. So we are well trained to perform our duties in this manner.

AMY GOODMAN: That was Sheriff Arpaio. Viridiana Hernandez, your response? He was speaking on local television in Arizona.

VIRIDIANA HERNANDEZ: Definitely not. As someone that was in the jail system, like I was able to see exactly how they do treat people, how it is that they—that they torment people, that they laugh at people, and those are the things that are seen that a lot of people have gone through worse experiences than me. Like, even in jail, I was still privileged, because the cameras were on, and they still treated me a little bit better than they would have treated other—like they would treat my mom. And so, like, you know, I go door knocking. I go door knocking and talking to people. And regardless of what he says, the people have seen that he is not doing his job, that he is not protecting our communities, that when a community fears the people who are supposed to protect them, there is something wrong. And like the community that we talk to and the community just throughout Arizona see what is wrong with his office, and they’re ready to get him out.

NERMEEN SHAIKH: In a rare move, Supreme Court Justice Antonin Scalia’s dissent in this S.B. 1070 case also criticized a policy that was not before the court: President Obama’s recent announcement that his administration would not deport many undocumented immigrants who came to the U.S. as children. Scalia wrote, quote, “The president said at a news conference that the new program is 'the right thing to do' in light of Congress’s failure to pass the administration’s proposed revision of the Immigration Act. Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the president declines to enforce boggles the mind.” Marielena Hincapié, could you respond to that statement by Justice Scalia?

MARIELENA HINCAPIÉ: So, unfortunately, Justice Scalia’s dissenting opinion highlights how ideology really is what’s at play. That issue was not before the Supreme Court. The fact that he felt he needed to speak to that and once again question the Obama administration’s authority on immigration, at the same time that the court had just issued a majority opinion talking about the importance of the federal government’s authority under the Supremacy Clause of the United States, again, just reminds us of the biases that are at play. And so, it’s not surprising that that’s coming from Justice Scalia. However, I think the important thing is that both the majority decision actually gives more power to the administration and to those of us that have been pushing the administration, like the DREAMers, that have been taking courageous actions through civil disobedience and other organizing to finally get the administration to actually accept and take ownership that they do have this authority and are finally exercising it.

AMY GOODMAN: We only have about 30 seconds left, but, Marielena, can you talk about what’s happening in Alabama and other states very quickly?

MARIELENA HINCAPIÉ: Sure. So our lawsuits in Utah, Indiana, Georgia, South Carolina and Alabama continue. Immediately, of course, we’re focused on Arizona, so that we will be vigorously pursuing the challenges there over the next days. In Alabama and Georgia, the 11th Circuit Court of Appeals just yesterday did ask us for some additional briefing, specifically with respect to Georgia, and so that’s the most immediate next step. But we at the National Immigration Law Center are committed to fight these laws in court until they’re struck down as unconstitutional, as well as also working with state and local advocates and DREAMers to ensure that at the state level in 2013 we have states actually pursuing pro-immigrant policies rather than these misguided and unjust anti-immigrant laws.

AMY GOODMAN: Marielena Hincapié, we want to thank you for being with us, executive director of the National Immigration Law Center.


AMY GOODMAN: And Viridiana Hernandez, thank you so much for being with us from Phoenix. This is Democracy Now! When we come back, we look at another Supreme Court decision. It says no longer can minors who committed murders be held in—held for life sentences without parole. Stay with us.

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