Photographer: Rick Friedman/Bloomberg
Photographer: Rick Friedman/Bloomberg

Can the police stop you and make you show your papers? In Europe, the answer has long been yes.

On Wednesday, the U.S. Supreme Court took up the issue -- and from what the justices said at oral argument, it seems the U.S. might soon be getting more European. Or at least one step closer to requiring a national ID card.

The Arizona law before the court, S.B. 1070, makes it a state crime to be an illegal immigrant, and for illegal immigrants to seek work. It empowers the police to arrest anyone suspected of committing a crime that would merit deportation, even if the crime occurred in a different state.

But the law’s most controversial and important provision, section 2(B), requires law enforcement to determine immigration status whenever officers have a “reasonable suspicion” that any person with whom they have lawful contact is in the country illegally.

After Arizona passed the law, the Barack Obama administration challenged all these provisions before the federal courts. Civil rights activists believe, reasonably, that the law could be used to discriminate against Latinos, who are more likely to look suspiciously like illegal immigrants in the eyes of the Arizona police.

Yet the Justice Department decided to sidestep that racial issue. Instead, it asserted the inherent federal power to set law and policy on immigration. It claimed that Arizona was trying to set up its own policy of “attrition by enforcement” -- scaring illegal immigrants back across the border to Mexico, or at least to surrounding states. A lower federal court and the 9th U.S. Circuit Court of Appeals agreed, blocking Arizona from enforcing the law without waiting to see how it would be applied in practice.

Risky Strategy

Avoiding the question of discrimination may have been good politics, but it was a risky legal strategy for the administration. No one (or at least no one but Justice Clarence Thomas) doubts that federal law can implicitly pre-empt an inconsistent state policy. Arizona, represented by Paul Clement (the conservative hero of last month’s health-care arguments), maintained before the court that its law is perfectly consistent with federal immigration law -- it is just taking that law seriously and giving it bite.

That left Solicitor General Donald Verrilli (who had a rough time during the health-care argument) to insist that Arizona had crossed the line into inconsistent policy-making. The trouble with this argument is that the law has not yet been enforced -- which makes it harder to claim that enforcement of the Arizona law would lead to inconsistency with federal policy.

To complicate things further, the framers of the Constitution were not worried about the states over-enforcing federal law. To the contrary, they feared that states would ignore laws made by Congress, as they had done under the Articles of Confederation. The Constitution solved that problem by making federal law the “supreme law of the land,” binding on states. To say that states cannot use at least some of their own discretion in enforcing federal law seems to turn states rights on its head.

In Wednesday’s argument, the justices understandably focused on the “papers, please” provision. The government asserted that the obligatory demand to provide proof of citizenship conflicted with federal policy not to require such a demand -- but not that the demand was otherwise unconstitutional. For his part, Clement argued that the demand alone could not displace federal law or immigration policy. Under the Arizona immigration law, any person detained for failing to produce his papers would be transferred immediately to federal immigration authorities, who could then make a decision about whether to deport him.

Real World Scenario

The upshot was that the court never had to confront the core question of whether there is a right to walk down the street without being challenged to provide proof of citizenship. Of course, the Arizona law requires reasonable suspicion before the demand is made. And Clement claimed in the oral argument that the law only allows the demand to be made after a stop based on probable cause.

But what, in the real world, would create a reasonable suspicion that someone is not American? It can’t be appearance or language. Americans come in all shapes and sizes, and there is no legal obligation for Americans to speak or understand English. In the old war movies, knowing who had won the World Series was proof of being a real American. But that is not information you wear on your sleeve.

This isn’t some theoretical question. If I can be forced to prove my citizenship on pain of arrest, I need something to convince the police that I’m a citizen. If I’m a legal immigrant, I will own the papers to prove it -- and I will have to carry them with me everywhere.

But what about citizens who are born in the U.S. but do something that makes the police reasonably suspect that they are illegal? What they need is a piece of paper declaring that they are citizens. A state-issued driver’s license won’t do, because noncitizens can drive. Anyway, states may have no record of who is a U.S. citizen. The ID card has to be national, as when we travel abroad -- which means a passport.

You can’t blame the justices for avoiding such a tough issue when the government didn’t raise it in the first place. But if the court holds that Arizona can experiment with “papers, please,” you should consider renewing your passport before bringing the family to the Grand Canyon.

(Noah Feldman, a law professor at Harvard University and the author of “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices,” is a Bloomberg View columnist. The opinions expressed are his own.)

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To contact the writer of this article: Noah Feldman in Cambridge, Massachusetts, at noah_feldman@harvard.edu.

To contact the editor responsible for this article: Tobin Harshaw at tharshaw@bloomberg.net.