U.S. Supreme Court decision to allow roving immigration patrols echoes Arizona’s SB 1070

The U.S. Supreme Court overturned a lower court order Monday that changes the game when it comes to immigration enforcement across the country — and it’s bringing up memories of the SB 1070 era in Arizona.

The ruling allows federal immigration agents to stop and detain people solely based on their race or ethnicity, or the fact that they’re speaking Spanish or have an accent, or because they’re sitting outside a place like Home Depot waiting for day labor work.

Critics say it’s blatant racial profiling that makes anyone with brown skin suspect. But the Trump administration celebrated the ruling as a victory for the rule of law in their mission to carry out the president’s mass deportations of undocumented immigrants.

That said, this is a temporary ruling. It means the government can continue to use these aggressive tactics in immigration sweeps as the court process plays out. And it’s having ripple effects across immigrant communities.

For more about the potential impact of this ruling here, The Show turned to longtime Arizona civil rights attorney Stephen Montoya.

Full conversation

LAUREN GILGER: Good morning, Stephen. Thanks for coming on.

STEPHEN MONTOYA: Good morning. Thank you.

GILGER: So what is your reaction to this Supreme Court ruling?

MONTOYA: Well, I'm not very happy about it. I'm somewhat surprised by it, because this really does overturn — even though it purports not to — long-term precedents that have been governing this area of law really for probably almost three decades. So, that's why I'm surprised.

Clara Santamaria

Here's why I'm not surprised. Unfortunately, the Supreme Court has really rubber stamped a series of expansions of executive power and the nationalization of federal law enforcement. And even more troubling the militarization of national law enforcement. And really that is something that is virtually unique in American history. And it's especially troubling because one of the reasons why there was an American Revolution and there was a constitutional convention in 1787 and there was a ratification of the Constitution that resulted from the convention was because of a militaristic foreign police force in America. It was called the English Army, that was really terrorizing the citizens and imposing a dictatorship upon the people.

We're not close to a dictatorship upon the people. However, the expansion of federal law enforcement, the militarization of the National Guard, potentially nationally to enforce domestic law, coupled with the president who two terms ago, the United States Supreme Court ruled was immune — criminally immune — he was already civilly immune, from acts done in the scope of his office. All those things combined really do result in a profound change in the constitutional makeup of the United States.

GILGER: Let me ask you, Stephen, about what we're talking about here in Arizona. Like we're talking about immigration enforcement, racial profiling. And it sounds a lot like the debate around SB 1070 more than a decade ago, which was, you know, largely overturned then by the U.S. Supreme Court. That, of course, had to do with local law enforcement. This has to do with federal immigration agents. But you were involved obviously in the litigation against 1070. Are you seeing these similarities?

MONTOYA: Yeah, and before that back in the ‘90s, I was involved in a lawsuit against the city of Chandler, who conducted a municipal immigration raid in downtown Chandler that was also unconstitutional. Yeah, yeah, it is very similar. However, this is worse — because remember 1070 was a state law, as you pointed out. So it really was confined to Arizona.

And also remember the United States, the Obama administration sued the state of Arizona. And in United States vs. Arizona, the United States Supreme Court said that 1070 was unconstitutional, because the state could not just declare itself to have the authority to enforce federal immigration law. So, this is actually worse, because this is the federal government doing it. And the federal government is actually doing it not only in Los Angeles, but also in Washington, D.C., and virtually across the country.

So it's much broader in scope. And, moreover, unlike 1070, really, you know — which, it didn't involve the National Guard. See to federalize the National Guard and to use the National Guard as a police force to enforce immigration law is a very troubling and, in my opinion, dangerous precedent. ..

GILGER: So let me, let me ask you about the Trump administration's argument here though, Stephen, like some of the conservative Supreme Court justices who ruled on this say that you can't kind of hang the prospect of being held in contempt of court over these agents as they're trying to do their job. That it's reasonable to allow agents to rely on their experience to sort of target folks who might be undocumented. What do you make of that argument?

MONTOYA: Well, you know, I think it has some plausibility. And I personally am against illegal immigration. And I believe that everyone has to obey the law. I can't move to Mexico without seeking the authorization of the Mexican government in advance. And that's the Republic of Mexico's right to keep me out of Mexico should it choose to do so. So I support immigration enforcement.

However, I also support people's individual rights. And it's true, you know — I read Justice Kavanaugh's concurring opinion because of course the majority didn't render an opinion. They rendered an order without briefing, without oral argument, and without any justification for the order.

But I do get it. 10% of the residents of Los Angeles County are undocumented. That is an alarming amount. And it is true that a lot of them are from South America. So a lot of them appear physically to be Latino or Hispanic or Mexican or South American. A lot of them speak Spanish. A lot of them are manual laborers. A lot of them dress like manual laborers, and a lot of them are undocumented.

But unfortunately, for the law in due process, a lot of native-born Americans fall into that category, and Arizona is a great example. Douglas, part of Douglas, is in the United States and the other half of Douglas is across the street in Mexico. There are a lot of communities in Arizona like that, and there are a lot of native-born citizens who meet all of those characteristics that the Supreme Court has now authorized the federal government to stop and demand proof of citizenship.

I was born in Santa Fe, New Mexico. It's the oldest capital in the United States. It's older than Mexico. It's older than the United States. I don't carry around my birth certificate.

GILGER: Right.

MONTOYA: So it's very troubling. ... I would ask, are we going to put immigration enforcement above due process? And I say we should not do that.