ImmigrationSupreme Court hears arguments on Arizona immigration law

The U.S. Supreme Court yesterday heard arguments about the tough Arizona immigration law, known as SB1070. The purpose of the law is to discourage illegal immigrants from entering the states or remain and find work in Arizona.

SB1070, among other things:

• Expands the powers of state police officers to ask about the immigration status of anyone they stop
• Instructs law enforcement to hold those suspected of being illegal immigrants
• Requires police officers, “when practicable,” to detain people they reasonably suspect are in the country without authorization and verify their status with federal officials
• Makes it a state crime not to carry immigration papers
• Allows people to sue local government or agencies if they believe federal or state immigration law is not being enforced

The Christian Science Monitor notes that the case, Arizona v. United States (11-182), highlights a fundamental disagreement between the Obama administration and Arizona over the precise balance of power between the states and the national government.

The administration’s case is based on the notion of federal preemption, a legal doctrine that recognizes federal law as the supreme law of the land. If a federal law and a state law collide, the federal law trumps the state provision.

In the case under discussion, the Obama administration contends that by passing statutes designed to encourage illegal immigrants to leave the state, Arizona, in effect, has established its own immigration-enforcement mechanism. Immigration and border control, however, are exclusive areas for the federal government, so such usurpation of power is preempted.

Arizona argues that it is not seeking to establish its own immigration and immigration-enforcement regime. Rather, it is merely seeking to enforce the letter and spirit of immigration laws enacted by Congress. Arizona says it is doing so because successive administrations have decided not to enforce federal immigration laws, or have chosen to enforce them selectively. The Arizona law is thus not in violation of the preemption doctrine because the only thing it seeks to do is enforce federal laws. To do that, Arizona passed a state law which carefully mirrors federal requirements.

Paul Clement, who represents Arizona, told the court: “Arizona borrowed the federal standards as its own.”

The impression of analysts who sat through the court session was that the judges were skeptical of the administration’s arguments against the Arizona law.

The New York Times reports that the justices, regardless of their philosophical differences, appeared inclined to uphold one of the law’s most controversial parts, based on their questions.

“You can see it’s not selling very well,” Justice Sonia Sotomayor told Solicitor General Donald B. Verrilli. Verrilli, representing the federal government, was seeking to strike that part of the law’ which requires that state law enforcement officers determine the immigration status of anyone they stop if the officials have reason to believe that the individual might be an illegal immigrant.

Several justices opined that states were entitled to enact provisions — such as those included in the Arizona law, requiring officers to ascertain the immigration status of those they stop – because such requirements merely make mandatory practices which are already widespread. “What does sovereignty mean if it does not include the ability to defend your borders?” Justice Antonin Scalia asked.

Chief Justice Roberts raised another point: noting that the Arizona law requires that the federal government be informed of immigration violations and leaves enforcement decisions to the state, he said. “It seems to me that the federal government just doesn’t want to know who is here illegally and who’s not.”

Governor Jan Brewer of Arizona, a Republican, emerged from the hearing confident the state would prevail in the court’s ruling, which is expected in June. “I am very, very encouraged that we will get a favorable result,” she said. She noted that the justices’ questions showed that “we do have sovereignty and we certainly have states’ rights, and we have a responsibility and an obligation to protect our citizens.”

Supported of the Arizona law were equally cheered by the arguments they heard in court. “The Justice Department was on the ropes,” said Kris Kobach, the secretary of state of Kansas, a constitutional lawyer who advised Arizona on writing the law. “They were being pressed by the justices to explain the core weakness of their case, and that is there is no federal statute that conflicts with Arizona’s law.”

Five states have passed laws similar to the Arizona law, and eight additional states are now considering similar measures.