At 10 a.m. next Wednesday, in the final scheduled hearing of the Supreme Court’s current Term, the Justices move to sort out the sometimes conflicting roles of national and state governments in controlling the lives of non-citizens living illegally in the U.S. In Arizona v. United States (docket 11-182), the state’s tough new immigrant control law will be defended by Paul D. Clement of the Washington law firm of Bancroft PLLC. Responding, and defending lower court orders that blocked four key parts of the state law, will be U.S. Solicitor General Donald B. Verrilli, Jr. The case will be decided by eight members of the Court, since Justice Elena Kagan is recused.
If any one thing about U.S. immigration policy qualifies as conventional wisdom, it is that the borders of the U.S. are very porous, and that no government action has been able to stop the flow of undocumented immigrants into the country. Disagreement abounds, though, on what to do about it. In an increasingly tense and often angry national debate over policy options, it is sometimes forgotten that America once welcomed such newcomers.
In 1903, a bronze plaque bearing the poem of Emma Lazarus was mounted on the Statue of Liberty in New York City’s entering harbor, and it used to be common for school children to memorize the most famous lines from that poem: “Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door!”
Now, some politicians and advocacy groups vie to out-promise each other with ways — sometimes harsh — to deal with perhaps 12 million individuals living illegally in the U.S. And this year, in particular, that is a dominant theme in the presidential and congressional elections campaigns. The Supreme Court, too, has been drawn into the controversy. With notable symbolism in this election year, the Court will conclude its hearings for the Term on Wednesday by examining what the Constitution says about who can regulate the lives of immigrants. Its final ruling is likely to emerge by early summer, when the election campaign will be in full swing.
Adding to the symbolism, the Court will be reviewing the constitutionality of an Arizona law — the first, and a trend-setter of sorts, among sharp crackdowns by state legislatures on illegal immigrants’ daily lives. Its shorthand title — “S.B. 1070” — is now popularly known, much more so than its formal title, the “Support Our Law Enforcement and Safe Neighborhoods Act.” Its official goal, as passed by the legislature in 2010, is “attrition through enforcement.” By attrition, of course, it means forcing a reduction in the number of undocumented immigrants arriving or remaining in Arizona.
Arizona’s legislature, it is clear, does not want such individuals to move to other states; it wants them to return to their home countries, and, while they are in the state, to be restrained by tight controls on many aspects of their daily lives. Those features of S.B. 1070 are what has drawn the firm opposition of the federal government. The Justice Department is treating the state law as an intrusion on federal policy toward immigrants while they are in the U.S., and as a state-specific deportation measure conflicting with the federal government’s sole power to decide who can stay in the country.
The state’s basic arguments are that it has simply drawn up plans to cooperate with federal enforcement of the immigration laws, and has also taken steps to reduce what it believes is a rise in crimes committed by immigrants and what it sees as a threat to job opportunities for its legal residents. A state’s cooperation, it insists, is actually invited by federal law. And, it adds, the controls on immigrants living in Arizona are an exercise of the state’s traditional “police power” over those within its borders. The state has argued that it must react, because federal action has not worked, and the influx has caused serious issues of public safety and budgetary impact for education and social services.
Many civil rights groups also have challenged the Arizona law, with much of their focus on the claim that it will promote a form of “racial profiling” — the arrest and detention of individuals just because they look like foreigners. That is an issue that lower courts will have to grapple with first, but it was not a part of the federal government’s challenge, and that challenge moved ahead on the fastest track. The Supreme Court is hearing only the federal challenge at this stage, although many of the amicus briefs discuss the “profiling” claim.
Although legislatures in five other states (Alabama, Georgia, Indiana, South Carolina, and Utah) have recently passed new laws similar to (and some broader than) Arizona’s, the legislature in Phoenix stepped out in front of this wave of enactments, insisting that — as its lawyers have said — it “bears the burden of the problems caused by illegal immigration. It is the gateway for nearly half of the nation’s illegal border crossings.”
In 2005, Arizona officially declared a state of emergency because of the impact its officials saw from illegal immigrants arriving in waves. (That declaration was made by the governor at the time, Janet Napolitano; she is now the federal government’s Secretary of Homeland Security, the agency responsible for federal immigration enforcement.)
Ultimately, the legislature passed S.B. 1070 in 2010, and its current governor, Janice Brewer. signed it into law on April 29 of that year. Its constitutionality was promptly attacked by the federal government in federal court in Phoenix.
So far, there is no final ruling by a lower court for or against the constitutionality of any part of S.B. 1070. But the Ninth Circuit Court, upholding an earlier ruling by a federal judge in Arizona, has concluded that there is no way that the state can ultimately win federal court approval of four specific parts of the Arizona law. Thus, as the state’s appeal reached the Supreme Court, it is only in a preliminary legal state, with those four sections blocked from enforcement while full-scale tests of the merits can be reviewed by lower courts.
At issue before the Justices is the enforceability at this stage of those four provisions. If the Court concludes that — as written — they would unconstitutionally conflict with federal law or disrupt federal enforcement, it would not allow them to take effect. If it finds that they have no such impact on federal law or enforcement, it would let Arizona start enforcing them. Here are those four provisions:
1. A requirement that police in the state check the legal status of persons arrested before they may be released. That provision also allows police to stop and arrest anyone suspected of being an undocumented immigrant. That is Section 2(B).
2. A provision making it a state crime to be in Arizona without legal immigration papers. Section 3.
3. A ban forbidding all undocumented immigrants from applying for a job or working in the state. Section 5(C).
4. A provision that allows police, without a warrant, to arrest anyone believed to have committed a crime that would lead to deportation, even if the crime had been committed in another state. Section 6.
In a partially split decision in April 2011, the Ninth Circuit Court ruled that each of those provisions had been preempted by federal immigration law and policy, and thus they could not be enforced while the government’s lawsuit went forward in federal court in Arizona. States, the majority ruled, do not have their own free-standing authority to impose their own controls on illegal immigrants. Its most sweeping denunciation was of Section 2(B), concluding that the arrest authority was not limited solely to those whom police believe are in the country illegally, but rather would apply to everyone who got arrested in Arizona.
S.B. 1070 is, in fact, much broader in scope than those four provisions. But the lower courts turned down the federal government challenge to a number of key sections of the law. The state thus was allowed to enforce a clause that creates a crime for transporting or harboring an illegal alien, or encouraging an alien to come to or live in Arizona if he does not have a legal right to enter. Moreover, the government did not even challenge ten other provisions of S.B. 1070, including a section that allows any Arizona resident to sue any state official or agency for a policy that would mean lax enforcement of federal immigration laws.
After the Circuit Court had ruled on the four sections, the state of Arizona did not wait for the case to move further toward a final merits decision in the lower courts, instead opting to go directly to the Supreme Court, filing its petition in August of last year.
Petition for Certiorari
Lamenting that the federal government had made an “extraordinary effort to enjoin a duly enacted state law” even before it could take effect, Arizona asked the Supreme Court to take on the controversy even though it was in a preliminary stage. It raised a single question: whether federal law bars Arizona from cooperating in enforcing federal law, and thus preempts four provisions of S.B. 1070.
The state made a five-pronged argument on why the Court should not wait for the case to develop further before stepping in: the actual threat to safety that it saw in the rising illegal population, the threat to state sovereignty by the federal government’s rush to block the law, the failed federal effort to police the Southwest border necessitating state action, a split in the federal appeals courts on what states could do to enforce federal immigration law, and the potential impact of the outcome of this case on a spreading number of state and local laws designed to attack the illegal immigration problem.
“No one can deny,” the petition said, “that the problem of unlawful immigration is significant or that it has a disproportionate impact on border states. It is thus no small matter to conclude, as the Ninth Circuit did, that only the national government in Washington can address this problem.”
Seeking to appeal to the federalism concerns that sometimes emerge among Supreme Court Justices, the state said that “the baseline assumptions of our federal systems are that states have inherent, plenary police power and that cooperative law enforcement is the norm. States, unlike federal agencies, are not creatures of the federal Congress and do not depend on federal statutes for authorization.” It lambasted the Circuit Court for what the state said was the total failure even to consider whether the Arizona law was “susceptible of constitutional application.”
Echoing the remarks of state politicians that many of the newly arrived immigrants were dangerous and crime-prone, the petition said Arizona’s status “as a conduit for human and drug smuggling has rendered large areas of southern Arizona highly dangerous.” “Unlawful entrants,” it said, “include criminals evading prosecution in their home countries and members of Mexican drug cartels…Criminal aliens now make up more than 17 percent of Arizona’s prison population.”
The Obama Administration tried to head off Supreme Court review at this point, arguing that it would be premature for the Justices to step in when there was only a single federal appeals court ruling on the new round of state anti-immigrant laws. Other state laws on the subject, the brief in opposition said, are not carbon copies of what Arizona has passed, and the courts should be allowed time to sort out those. “There is no reason for this Court to cut off the ordinary process of appellate review,” the brief in opposition argued.
But that brief also contended that the Circuit Court had ruled correctly. It contended that Arizona was not just endeavoring to cooperate with the federal government, but rather was setting up “Arizona’s own immigration policy, ‘attrition through enforcement,’ to supplant” a federal policy just because state officials thought the federal approach was “misguided.” It did concede that “no one doubts that how best to address illegal immigration is an important issue,” but it contended this is one that should be confronted only when a proper time came.
Seeking to counter the argument that federal enforcement efforts are too lax, the Administration brief said that about one out of every four immigration enforcement officers are stationed in the five Southwest Border offices, including more than 350 in Arizona alone. On an average day, it added, federal agents remove about 900 aliens from the U.S., and about half of those are persons who had committed crimes. In Arizona alone, it added, more than 90,000 persons over the past six years have been kept out.
Arizona’s petition was supported by 46 members of the U.S. House and three members of the Senate, by the Arizona legislature, by 11 other states who said the case implicated the sovereignty of the states in an area where Congress had not explicitly mandated a federal takeover, by a group of state legislators worried over states’ ability to preserve safety within their borders, and by a host of conservative legal and social policy organizations.
The Court examined the case at only a single Conference, and granted it on December 12, noting that Justice Elena Kagan had not taken part — presumably because, in her former role as U.S. Solicitor General, she had a role in defending federal immigration policy.
Briefs on the Merits
The state of Arizona’s brief on the merits is a studied effort to persuade the Court to read the four presently blocked provisions of S.B. 1070 as narrow in scope, designed to impose no new obligations that do not already exist under federal immigration law. Rather, the brief argued at length, Arizona has only set up practical means for helping the federal government enforce what federal law already required, so there is no way to find a direct conflict between S.B. 1070 and any federal law or regulation.
Woven into the argument about the “parallel” efforts of Arizona, alongside federal officials, to ensure that the national laws are obeyed by undocumented immigrants, is a separate argument that states have a good deal of discretion, as sovereign entities with traditional police power (the power, essentially, to keep order), to make their own choices about law enforcement, and that they do not need federal permission or an explicit grant from Congress to exercise that power to protect their own residents.
The brief, though, seeks to set up those two lines of argument with a more general description of how the law of federal preemption is supposed to work. There is nothing in federal immigration laws, the brief noted, that directly bars states from passing laws to help enforce those laws, nor is there anything that says that states have no role whatsoever to play in the immigration context because federal authorities are to do it all. Thus, states have not been ordered explicitly to the sidelines and, to the contrary, are actively encouraged to act cooperatively with federal authorities, the brief said.
That leaves only the possibility, the state brief suggested, that there is some implication that Congress feared that states would disrupt the federal system of enforcement. Technically, that is the concept of “implied preemption,” but Arizona argued that for a state law to be displaced under that theory, there must be reliable proof that federal and state laws clash. But, it went on, here they cannot clash, when the legal standards to be met by immigration policy are federal and only federal, and the state seeks merely to help enforce such standards. That would only make federal law more effective, not frustrate it, according to the brief.
The brief went over each of the four sections, seeking to demonstrate that there is no conflict with any federal effort. In doing so, the state discussed the provisions in two categories: those that deal with immigrant registration requirements or with getting a job (Sections 3 and 5[C]), and those that involve police authority to stop, arrest and detain people to check their legal status, or arrest without a warrant those with criminal records (sections 2[B] and 6).
On Sections 3 and 5(C), the state contended, there are federal standards — requiring non-citizens to register, and limiting job rights of non-citizens — and Arizona has accepted the invitation that federal law extends to engage in cooperative enforcement of those very provisions. The state has adopted each federal rule “as its own,” so that erases any potential for conflict, according to the brief. Without that, it argued, there can be no preemption, and there is no special exception from preemption doctrine in the immigration context.
On Sections 2(B) and 6, the brief contended, the state has done nothing but add an immigration status inquiry to the kind of police activity that it has traditionally had power to employ. State police do need authority from their state government to engage in stops, arrests or detention, but here they get that authorization from S.B. 1070, the brief said. “But,” it went on, “they do not require some express federal authorization akin to that needed by a federal agency….States have inherent authority to enforce federal law.”
The Obama Administration’s brief on the merits opened by seeking to lay a foundation for its federal supremacy argument, but also sought to show that the federal response to illegal immigration was not a failed effort at all, and that, indeed, there was no need for Arizona in particular to worry that it was being left to its own devices. The sweep of federal power is described by the brief in such expansive terms as to leave little space for states to act, except when the government has summoned their cooperation.
Its strongest rhetorical point, in this opening, is that no state has the authority under the Constitution to adopt its own immigrant control policy. That, it argued, is exactly what Arizona had undertaken to do. The “attrition by enforcement” approach, the brief said, “focuses solely on maximum enforcement policy and pays no heed to the multifaceted judgments” that federal law “provides for the Executive Branch to make. For each state, and each locality, to set its own immigration policy in that fashion would wholly subvert Congress’s goal: a single, national approach.”
The brief saved, for the discussion of the four specific parts of S.B. 1070, its argument on how the state law intrudes into federal enforcement and actually frustrated that enforcement. The introductory parts of the brief were all about Congress’s explicit determination, as the brief described it, that the Executive Branch is to have both the authority and the discretion to “make sensitive judgments” about immigrants, touching on “national security, law enforcement, foreign policy, humanitarian considerations, and the rights of law-abiding citizens and aliens.” It is those “sensitive judgments,” it argued, for which Arizona has sought to substitute its own judgment.
Turning to the four sections at issue, the government’s brief, like the state’s, treated them in two categories: new duties for police to verify immigration status and make arrests, and newly declared state crimes. The former were Sections 2(B) and 6, and the latter were 3 and 5(C).
On the status verification provisions in Section 2, the Administration said that, while federal law does encourage states to cooperate, Arizona has abandoned cooperation and substituted “confrontation.” By “insisting indiscriminately on enforcement in all cases,” the brief contended, Arizona has made cooperation impossible. What the Constitution requires, given federal supremacy, according to the U.S. brief, is that states yield to the “enforcement judgments and discretion of the federal Executive Branch.”
On the arrest mandates in Section 6, Arizona, according to the Administration, is not cooperating but rather is giving its police authority to “pursue and detain a person based on the officers’ perception” that that individual is subject to being deported, and pays no attention to whether the federal government has undertaken to decide whether deportation was a proper action to take for a given individual.
On the creation in S.B. 1070’s Section 3 of a new crime for failure to have immigration papers, the government brief argued, Arizona was not imposing a new registration requirement all of its own, but it was attaching new penalties and a new scheme of enforcing such requirements. Arguing that the federal and state approaches are not actually running in “parallel,” the brief said that the federal government has used its discretion not to prosecute all immigrants over failure to register, but Arizona countermands that with its own penalties and its own enforcement mandates. (Curiously, the federal brief does not mention it, but, according to an amicus brief filed for several civil rights and minority advocacy groups, there actually is no present system of required federal registration of undocumented immigrants. Government regulations for more than 50 years, that brief said, have required registration almost entirely for people who have legal permission to be in the country, so Arizona seeks to enforce a federal requirement that does not exist.)
The Administration also contended that there is no “parallel” approach between federal policy and Arizona’s over jobs for undocumented immigrants. Under the federal approach, it said, there are graduated penalties for hiring persons who have entered the country illegally, and criminal prosecution is reserved “only for deception” by workers. By contrast, it said, S.B. 1070’s Section 5 “seeks to criminalize working, or even seeking work, without authorization, a penalty rejected by Congress and contrary to the balanced and comprehensive framework Congress created.”
Each side in the case has drawn the support of about two dozen amicus briefs.
On Arizona’s side, the main complaint of amici is that the federal government is intruding deeply into the sovereign authority of the states to keep peace and order within their borders; 16 states and a variety of organizations have made that point. Other themes on this side are that the Executive Branch is seeking far more power than Congress granted, that it is spurning the states’ willingness to cooperate in enforcement, that it is failing to enforce existing law and instead is using its energy to thwart states’ attempts to protect their citizens. Further, there is the assertion that illegal immigration is so serious that border states’ very existence is at stake. On the preemption point, there is an argument that a national government’s choice of priorities in policy is never enough to override state laws, that the Supreme Court itself has already rejected the “balanced theory of enforcement” that led to the Ninth Circuit’s ruling against the Arizona provisions, and that the objection of foreign nations to a state’s policy has no bearing on whether such a policy is unconstitutional. There is also a brief from former Arizona state senator Russell Pearce, the author of S.B. 1070, noting that the record in the case does not show how Arizona might have enforced the law if it had gone into effect, and seeking to fill that gap by showing how it could validly operate. (Pearce was ousted in a recall election last November.)
On the federal government’s side, recurring themes among the amici are that Arizona has adopted a “blunderbuss” approach to immigration enforcement as opposed to a carefully calibrated federal approach, it cannot help but be abused by local police already shown to discriminate especially against Hispanics, it will operate in practice against U.S. citizens and permanent legal residents more than against those here illegally, it will have grave consequences for U.S. relations with Latin American countries (18 such nations have filed briefs), it seriously misunderstands the role that states are supposed to play in the immigration context (11 states have filed briefs on the U.S. side), it imposes limitations or punishments that are anything but “parallel” to federal standards or policy, and it has already encouraged a rash of other hasty “copycat” laws that threaten civil liberties in many parts of the U.S.
It may be crucial to the outcome of this case — though perhaps not as interesting to the general public as will be the bottom line of whether the Arizona law survives or not — that the case involves the complex question of when a state law is to be struck down because it violates the principle of “implied preemption.” For one thing, this means that Arizona may already have one solid vote on its side: that of Justice Clarence Thomas. He has said repeatedly that there is no such thing as “implied preemption” under the Constitution: if a federal law does not say, in specific language, that it is displacing state law, then there is no constitutional bar to the state law. Everyone agrees there is no such language in immigration law that would directly knock out the Arizona provisions.
For the Arizona law to survive, though, it would have to gain the support of four other Justices. With Justice Kagan not taking part, a 4-4 split among those who are taking part would simply uphold — without a written opinion — the Ninth Circuit decision barring enforcement of the four provisions at issue.
There appear to be four other votes on the Court for only a very sparing use of “implied preemption” theory. As recently as last May, Chief Justice John G. Roberts, Jr., in a comment supported by Justices Samuel A. Alito, Jr., Anthony M. Kennedy and Antonin Scalia, remarked (internal quotation marks in the original): “Implied preemption analysis does not justify a ‘freewheeling judicial inquiry into whether a state statute is in tension with federal objectives’…such an endeavor would undercut the principle that it is Congress rather than the courts that preempts state law….Our precedents ‘establish that a high threshold must be met if a state law is to be pre-empted for conflicting with the purposes of a federal Act.’ “
That comment, of course, came as the Court upheld another Arizona law dealing with legal restraints on undocumented immigrants: a law that severely punished businesses in the state for putting such immigrants on their payrolls. (U.S. Chamber of Commerce v. Whiting, docket 09-115, decided last May 26.)
The decisive question for S.B. 1070’s fate, then, may well be whether the federal government and its supporting amici have crossed that “high threshold” and thus have shown that Arizona’s law conflicts with federal policies or priorities. That side would probably have to attract only one vote from the five just mentioned to prevail, since Justices Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor might be expected to vote to strike down S.B. 1070; they dissented in the Whiting case. Those three plus a fourth would sustain the Ninth Circuit decision against S.B. 1070.
It does not seem far-fetched that the most likely ally against S.B. 1070 would be Justice Kennedy, for one reason in particular: he is often very sensitive about racial implications of laws or policies, and much of the argument against the Arizona law — and, in particular, its Section 2(B), the stop, arrest and detain clause — is the claim of “racial profiling.” Ironically, that is not the theory that the federal government used to challenge the statute; it was implied preemption. But many amici on the government side have pressed that point in their briefs.
But suppose that might doom Section 2(B); what of the other three provisions? Arizona’s legislature, in enacting the law, said explicitly that it designed all of the provisions of the statute to work together to keep undocumented immigrants from entering, from remaining, and from getting jobs in the state. Perhaps that might be enough to show that no part of the law was intended to remain on the books if a key part of it fell.