Showdown on Arizona immigration law goes to Supreme Court
The case has major implications for the presidential campaign and other states where similar crackdowns on illegal immigrants are being challenged.
By David G. Savage, Washington Bureau
April 21, 2012, 4:58 p.m.
Los Angeles Times
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A U.S. Border Patrol unit monitors a stretch of the U.S.-Mexico border in Arizona. The Obama administration's challenge of Arizona's tough law on illegal immigration will be heard by the Supreme Court on Wednesday. (Guillermo Arias, Associated Press / July 28, 2010)
WASHINGTON — The Supreme Court and the Obama administration are set for another politically charged clash Wednesday as the justices take up Arizona's tough crackdown on illegal immigrants.
It will be a rematch of the attorneys who argued the healthcare case a month ago, and another chapter in the partisan philosophical struggle over states' rights and the role of the federal government.
And once again, President Obama's lawyers are likely to face skeptical questions from the high court. Last year, the court's five more-conservative justices rebuffed the administration and upheld an earlier Arizona immigration law that targeted employers who hired illegal workers.
To prevail this year, the administration must convince at least one of the five to switch sides and rule that the state is going too far and interfering with the federal government's control over immigration policy.
The election-year legal battle goes to the heart of the dispute between Republicans and Democrats over what to do about the estimated 11 million illegal immigrants in the country.
Arizona and five other Republican-led states seek a stepped-up effort to arrest and deport illegal immigrants. They say the federal system is broken and fault Obama for what they consider a "relaxed" enforcement policy.
If cleared by the courts, Arizona would tell its police to check the immigration status of people they lawfully stop and suspect of being in the country illegally. If they were unable to show a driver's license or other "proof of legal presence," they would be arrested and held for federal immigration agents. Arizona also would make it a crime to lack immigration papers or for illegal immigrants to seek work.
For its part, Obama's administration favors targeted enforcement, not mass arrests of illegal immigrants.
The administration has gone after drug traffickers, smugglers, violent felons, security risks and repeat border crossers. Last year, nearly 400,000 people were deported, a record high. At the same time, the administration says mere "unlawful presence" in this country is not a federal crime, and it opposes state efforts to round up and arrest more illegal immigrants.
Alabama, Georgia, South Carolina, Indiana and Utah also have adopted tough immigration enforcement laws. But judges have blocked many of their provisions, awaiting a ruling from the high court.
Washington lawyer Paul Clement, President George W. Bush's solicitor general, will argue for Arizona and Republican Gov. Jan Brewer on Wednesday; Obama's solicitor general, Donald B. Verrilli Jr., will argue the Democratic administration's case.
Clement is arguing for a stronger state role in enforcing the immigration laws, traditionally a federal function. Verrilli is contending that Arizona's "maximum enforcement" policy for immigration goes too far and conflicts with federal policy.
The court's decision, expected by the end of June, could ignite the immigration issue in the presidential campaign.
Republican presidential candidate Mitt Romney has said he supports laws in Arizona and elsewhere that seek to drive away illegal immigrants. "The answer is self-deportation," he said in one debate.
Obama, on the other hand, has expressed concern about the effect on millions of normally law-abiding Latinos, including those with U.S. citizenship.
The Arizona law "potentially would allow someone to be stopped and picked up and asked where their citizenship papers are based on an assumption," Obama said in a recent interview. The president also supports the Dream Act, a proposal that would offer a path to citizenship for young illegal immigrants who earn diplomas or serve in the military.
Two years ago, Obama's lawyers sued in federal court in Phoenix to block Arizona's law. They argued that the federal government's exclusive power over immigration preempts the state's law. U.S. District Judge Susan Bolton agreed, as did the U.S. 9th Circuit Court of Appeals in San Francisco. Its 2-1 decision put on hold four key parts of Arizona's law, including the stop-and-arrest provision.
Romney has pledged that if elected president, he would "drop these lawsuits on day one."
The Supreme Court, however, may revive most or all of Arizona's law by the summer.
Last year, the court, in a 5-3 decision, upheld the Arizona law that would take away the business licenses of employers who knowingly hire illegal workers. The Obama administration, civil rights groups and the U.S. Chamber of Commerce had contended this state enforcement measure clashed with federal immigration law.
Chief Justice John G. Roberts Jr. disagreed and sounded a states' rights theme. He said the law sets a "high threshold" for striking down a state law as "preempted for conflicting with the purposes of a federal act." Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. agreed.
Three liberal justices supported the administration's view. Justice Elena Kagan sat out last year's case and also has withdrawn from this year's, apparently because of her role as solicitor general during Obama's first year in office. Her absence could lead to a 4-4 split, which would affirm the 9th Circuit's decision.
If the high court reverses the 9th Circuit's decision, Latino advocacy groups say they will go back to court in Phoenix and seek to block the law on civil rights grounds.
Showdown on Arizona immigration law goes to Supreme Court - latimes.com
Arizona set to defend SB 1070 in pivotal Supreme Court case
Arizona set to defend SB 1070 in pivotal Supreme Court case
by Alia Beard Rau on Apr. 21, 2012, under Arizona Republic News
Arizona will go before the U.S. Supreme Court on Wednesday to defend its immigration law, Senate Bill 1070, in a case that will determine the future of immigration enforcement nationwide.
National legal experts predict the high court’s ruling will be a landmark decision that determines whether states have the right to enforce federal immigration laws as they see fit.
It is unusual for the Supreme Court to accept a case that hasn’t yet been fully adjudicated by the lower courts, but the court appears to want to resolve the issue sooner rather than later. Several other states have passed laws similar to SB 1070, prompting conflicting legal rulings in various appeals-court districts.
“This could be one of the most significant immigration decisions of the last 20 or 30 years,” said University of California-Davis School of Law Dean Kevin Johnson. “It raises all kinds of issues that make for great cases: Immigration is an issue of great public importance, it raises issues of state versus federal power and it comes at a time when there is a lot of attention being focused on what’s going on on the border.”
SB 1070, among other things, made it a state crime to be in the country illegally and stated that an officer engaged in a lawful stop, detention or arrest must, when practicable, ask about a person’s legal status when reasonable suspicion exists that the person is in the U.S. illegally.
The key issue before the Supreme Court is whether Arizona has the right to enforce federal immigration laws the way it chooses. The U.S. Department of Justice in its lawsuit argued that immigration is an issue that only the federal government can address. The state argued that SB 1070 mirrors federal law and assists the federal government in enforcement.
The Supreme Court’s ruling will affect laws nationwide, both the copycat SB 1070 laws that states such as Alabama have passed and future immigration-enforcement regulations that Arizona and other states may push. That ruling likely won’t come until this summer.
Law history
Arizona lawmakers had tried unsuccessfully for years to get pieces of what later became SB 1070 passed. It took the alignment of the political stars in 2010 to get it done, most notably a Legislature dominated by conservative “tea party” Republicans, a Republican governor in need of political clout to win re-election and growing concern about the violence of Mexican drug cartels.
Lawmakers were ready to wage war against illegal immigrants. As the written intent of the law states, its goal is to deter the unlawful entry and presence of illegal immigrants in Arizona through a policy of “attrition through enforcement.”
Gov. Jan Brewer signed SB 1070, which was sponsored by former Sen. Russell Pearce, R-Mesa, into law on April 23, 2010. The result was an international political firestorm. Hundreds of supporters and opponents rallied at the state Capitol. Opponents called for a boycott of Arizona that resulted in canceled conferences. Supporters sent Brewer hundreds of thousands of dollars to help fund the law’s legal defense.
The U.S. Department of Justice sued, as did several individuals and groups.
Average Americans — and Arizonans — seemed to have mixed feelings about the law. Polls from 2010 indicated that a majority of both Arizonans and Americans supported SB 1070. But at the same time, polling indicated that a majority of Arizonans supported allowing working illegal immigrants with no criminal record to remain in Arizona.
Hours before it was scheduled to go into effect on July 29, 2010, Arizona federal Judge Susan Bolton stopped it.
Bolton ruled that immigration is the responsibility of the federal government, not individual states. She issued injunctions stopping five parts of the law: requiring a law-enforcement officer to check a person’s immigration status in certain situations; making it a crime to not carry “alien-registration papers”; allowing for a warrantless arrest if there is cause to believe a person committed a crime that makes him or her removable from the U.S.; making it a crime for illegal immigrants to work; and making it a crime to impede traffic while picking up or being picked up as a day laborer.
That November, Arizona voters supported those behind SB 1070. Brewer won overwhelmingly, as did Pearce. Republicans won a supermajority in both the House and Senate, and within that majority were even more self-proclaimed tea-party Republicans.
Brewer pushed ahead with her support of the law. She appealed the injunction to the U.S. Court of Appeals for the 9th Circuit, which later upheld Bolton’s injunction. She then appealed to the U.S. Supreme Court, asking it to overturn the lower-court rulings and allow the entire law to go into effect.
The law’s 10 provisions that Bolton had allowed to go into effect seem to have had minimal impact on how law enforcement does business. Some law-enforcement agencies have said they’ve made a handful of arrests under the law, but others have said they are not enforcing any portions of the law. There has been no outcry from immigrants that law enforcement is using the law in a way that violates their rights.
Pearce has said the most important portion of the law allowed to go into effect requires local governments to enforce federal immigration law and eliminate “sanctuary city policies” that limited law enforcement’s ability to question someone about their legal status.
Pre-emption argument
It is somewhat unusual for the Supreme Court to take up a case at the preliminary-injunction stage instead of waiting for the lower courts to rule on the full merits of the case.
The underlying lawsuit the federal government filed challenging SB 1070, as well as several of the other cases filed against the law, is still awaiting trial before Bolton. But legal experts on both sides of the issue say that in this case, the injunction — and the legal reasons given for its necessity — is the case.
“If the justices thought the details of what might come out at a full trial would make a difference, they wouldn’t have taken the case. There were a number of reasons to wait, but they took the case,” said Jack Chin, a University of California-Davis School of Law professor who studied SB 1070 while teaching at the University of Arizona. “They want to rule.”
While legal experts agree that pre-emption will dominate Wednesday’s arguments, they differ over what the details of that debate will — or should — address.
Carissa Byrne Hessick, a professor at Arizona State University’s Sandra Day O’Connor College of Law, said attorneys may focus not on whether the state can enforce federal immigration law but how many and which legal cases to pursue.
“The federal government has made it clear that their priority, when it comes to immigration enforcement, is people who are both here unauthorized and have a criminal background,” she said. “Arizona is saying the federal government should have 100 percent enforcement and because it doesn’t, we are going to enact our own laws that allow us to enforce in situations where the federal government doesn’t.”
Paul Bender, also a professor at the Sandra Day O’Connor College of Law, said the federal government’s best chance may be to focus on the real-life impact of allowing the law — and similar laws in any other state — to go into effect.
“If any state can do something like this, you would have the possibility of every state in the country having some sheriff’s deputy or city policeman going up to someone who looks Hispanic and saying, ‘Show me your papers,’ ” Bender said. “That’s really the strongest argument for the government to make.”
And on the other side, Bender said, Arizona’s most powerful argument is to show the impacts of the federal government not effectively enforcing federal immigration laws.
Chin said the legal argument goes beyond pre-emption. He said the federal government, even before there was federal law on immigration, determined the issue of immigration was within the federal government’s purview.
“Pre-emption generally means some sort of conflict with federal statute,” Chin said. “But this is a deeper issue about whether states have any power at all over the area, even if there is zero pre-emption because a law is completely consistent with federal law.”
National impact
The U.S. Supreme Court chooses cases on issues that affect the country as a whole and those that have arisen in more than one state. For example, before the high court heard arguments last year about the Arizona employer-sanctions law, which imposes civil sanctions against hiring undocumented workers, circuit courts issued differing rulings on similar cases in other states.
As other states passed laws similar to SB 1070 this year and lower courts differed in their rulings on the laws, the debate over what role states play in immigration enforcement has elevated.
Alabama’s law overtook Arizona’s as the toughest in the nation. The Alabama law mimics SB 1070 and then adds additional legal requirements, including requiring schools to document students’ legal status.
“There has been more action on immigration at the state level than at any time ever before,” Johnson said. “This case, if there’s a majority opinion, sets up the ground rules and framework for what states can do when it comes to immigration enforcement.”
Technically, the Supreme Court at this point must focus on the preliminary injunction. The court could lift the injunction and allow the entire law to go into effect, it could lift part of the injunction and allow portions of the law to go into effect or it could uphold the lower courts’ ruling and keep the injunction in place.
Its decision is final on the injunction in the U.S Department of Justice case, but the ramifications of the ruling could go beyond that.
Bolton still needs to resolve the underlying case in this lawsuit, and another filed by civil-rights groups. She will have to base her decision on those underlying cases on whatever the Supreme Court rules on the injunction.
If the Supreme Court lifts the injunction, SB 1070 and every other law like it could go into effect. It would also open the door for new state laws enforcing federal immigration law. Supporters of these laws say they are vital to protecting national security at a time when the federal government has dropped the ball.
American Civil Liberties Union of Arizona Legal Director Dan Pochoda said if the court lifts the injunction, the loser is not the federal government but millions of Latinos who could face harassment because someone thinks they may be in the country illegally. The ACLU has filed a court brief to the Supreme Court opposing the law, and also has its own lawsuit pending before Bolton.
“We are certainly concerned,” Pochoda said.
The Supreme Court’s ruling is likely to have implications in the national political arena as well, particularly since a ruling would come only a few months before the presidential election.
A win for the U.S. Department of Justice would be a win President Barack Obama could tout, particularly with the Obama campaign’s recent announcement that Arizona could be in play in the presidential election because of a Latino voter population outraged by SB 1070.
Pearce has endorsed likely Republican candidate Mitt Romney, saying that Romney also supports SB 1070′s policy of attrition through enforcement. Kansas Secretary of State Kris Kobach, the attorney who helped Pearce write SB 1070, is a Romney adviser.
But in this particular case, there is a distinct possibility that nobody wins.
Justice Elena Kagan has recused herself from the case because she was Obama’s solicitor general when the federal government filed the lawsuit against Arizona. That leaves the possibility of a 4-4 tie.
In that situation, the 9th Circuit ruling enjoining the law is upheld but it may apply only to this particular case and sets no precedent for other cases or states.
“Then the Supreme Court is likely to get the issue again because it will percolate in the 11th Circuit, which governs Alabama,” Johnson said. “So if the court punts in this case, we’ll just have the second half later.”
source: Arizona set to defend SB 1070 in pivotal Supreme Court case - News from The Arizona Republic
