• SOVEREIGNTY SUPREME SAVE OR SUPREME BODY SLAM? - Showdown on Arizona immigration law goes to Supreme Court


    The Brewer brief to the Supreme Court asserts the right of the state to supplement enforcement of federal law so long as state efforts don't directly contravene federal law.

    In the end, the disposition probably hinges on the extent the justices buy the Obama administration's argument that executive-branch discretion is a fundamental and pervasive element of congressional intent, and state actions must therefore comport with administration policy as well as federal statutes.


    Arizona's SB1070: Supreme Court will hear 2 strikingly different views


    For Arizonans, SB 1070 is about illegal immigration. For the U.S. Supreme Court, which will hear arguments about the constitutionality of some of its provisions on Wednesday, the issue is federalism -- the respective authority and roles of the federal and state governments.
    The court will hear starkly different views about that.

    The Brewer administration's stance

    Because of distrust of the attorney general at the time (Terry Goddard), the Legislature gave Gov. Jan Brewer unusual control of litigation regarding SB 1070.

    According to the Brewer administration, Arizona is disproportionately affected by illegal immigration and has a sovereign right to try to address those effects.

    The Brewer brief to the Supreme Court acknowledges the singular right of the federal government to determine who can be in the country legally and under what conditions. But it asserts the right of the state to supplement enforcement of federal law so long as state efforts don't directly contravene federal law.

    by Robert Robb, columnist - Apr. 21, 2012
    The Republic | azcentral.com

    The Obama administration's stance


    The Obama administration has a radically different view of what states can and cannot do regarding illegal immigration. According to its brief, Congress has given the executive branch broad discretion regarding the enforcement of federal immigration laws so that a variety of objectives can be balanced and harmonized, including relations with foreign governments.
    States can assist with the enforcement of federal immigration laws, but only in cooperation with and under the direction of the federal government.

    States cannot unilaterally take actions that conflict with how the executive branch has decided to exercise its discretion regarding enforcing the immigration laws.

    In oral argument, these contrasting views about the authority of state governments to take action regarding illegal immigration will battle it out over four provisions of SB 1070 that lower courts have enjoined as probably being unconstitutional.

    Checks at police stops

    The most controversial provision of SB 1070 was the requirement that local law enforcement follow up on reasonable suspicion of illegal presence in the course of a stop for some other purpose, if practical and not a hindrance to an investigation. This is also the provision most likely to be reinstated by the Supreme Court.

    This requirement may not be a wise use of local law-enforcement resources, but that's hardly a federal issue or concern. The Obama administration argues that responding to such inquiries will detract from its immigration-enforcement priorities. But federal law requires a federal response to such inquiries.

    Hard to argue that federal law pre-empts local law enforcement from asking when federal law requires the federal government to answer.

    Illegal presence a crime

    The harder question is, what happens when local law enforcement is told that someone in their custody is in the country illegally? The Obama administration has made it clear that its priority is deporting illegal immigrants who have committed serious crimes. Others are likely to get a pass.

    There is a federal law making it a crime for foreigners to enter the country without timely registering with the federal government. Virtually everyone who is in the country illegally is in violation of this federal criminal statute.

    The federal government has long ignored this statute and treated illegal presence as a civil matter, subject only to deportation. And the Obama administration has basically said that, except for those who commit serious crimes, deportation isn't even likely.

    SB 1070 makes failure to register federally a state crime, with penalties that mirror those of the federal statute.

    I have long thought that the Supreme Court would frown at a state setting up its own enforcement scheme for violations of federal immigration laws. Now, I'm not so sure.

    It's hard to argue that Congress intends for the federal statute not to be enforced. If so, Congress could repeal it.

    And it would seem hard for the Obama administration to argue that because it doesn't have the resources or inclination to enforce the federal statute, states should be prohibited from doing so with their own resources.

    The Obama administration has a stronger argument on a smaller point.

    Under federal law, some people are in the country with the approval of the federal government but without formal authorization, while various applications are being considered. These people could be caught in the maw of the state law.

    State crime for working

    SB 1070 makes it a state crime for someone in the country illegally to work or seek work.

    There is no analogous federal crime, so this is a case in which SB 1070 doesn't just enforce federal law, as supporters endlessly claim.

    Federal law makes knowingly hiring illegal workers a crime but makes working illegally just a deportable civil offense.

    According to the Obama administration, this distinction is purposeful, and the legislative history seems to support that.

    If there is such a thing as implied pre-emption -- and the Supreme Court has said that there is -- this would appear to be a case of it.

    Warrantless arrests

    SB 1070 gives law enforcement state authority to arrest someone, without a warrant, if there is probable cause to believe that the person has committed a deportable public offense.

    This is a problematic provision. It's not clear how a local arresting officer would acquire such probable cause, and there is a large gap between offenses that, on paper, could result in deportation and offenses that, under administration policy, will result in deportation.

    But it's also hard to see how it's facially unconstitutional or pre-empted. It's a power granted to local law enforcement by state law.

    What would happen after arrest would be up to the federal government.

    Who wins?

    How I see it may not, of course, be how the Supreme Court sees it.

    The court did uphold Arizona's employer-sanctions law against very similar arguments as are being made against SB 1070. But, in that case, allowing enforcement through state licensing provisions was expressly allowed by federal law.

    In this case, Congress has neither specifically allowed nor prohibited the state actions in SB 1070.

    In the end, the disposition probably hinges on the extent the justices buy the Obama administration's argument that executive-branch discretion is a fundamental and pervasive element of congressional intent, and state actions must therefore comport with administration policy as well as federal statutes.
    This article was originally published in forum thread: Showdown on Arizona immigration law goes to Supreme Court started by Jean View original post