Editor's Note :

Editor's Note :

In previous years, the Court released orders the morning after the Court’s “Long Conference.” It has not done so this year. Beginning last Term, the Court consistently considered petitions at least two times before granting certiorari. To the extent that practice continues -- and there is no affirmative evidence the Court intends to drop it -- so we are again doubtful that certiorari will be granted in any cases today.

Kali Borkoski Manager

Posted Wed, October 26th, 2011 9:31 am

Arizona v. United States

Today in the Community we are discussing Arizona v. United States, in which Arizona is asking the Court to review the Ninth Circuit’s decision barring it from enforcing several provisions of its controversial immigration law, S.B. 1070, on the ground that they are preempted by federal immigration law.  (Lyle discussed the case, as well as the status of several challenges to similar laws in other states, on Monday.)  We focus today on Arizona because the state’s petition is the only one currently pending before the Court.  More coverage of the petition itself is here; the blog also hosted an online symposium this summer with extensive analysis of the case. We look forward to reading your comments.

Here is a summary of the four provisions that Arizona is currently prohibited from enforcing:

1. In Arizona, a police officer is required, when he makes any stop or arrest, to try to determine the individual’s legal right to be in the U.S., if he has “reasonable suspicion” that the person is an illegal alien.  If an individual is arrested, he may not be released until his immigration status is verified by the federal government.

2. It is a crime to intentionally fail to obtain and carry legal immigration papers in Arizona.

3. It is also a misdemeanor under state law for an undocumented immigrant to apply for a job, publicly seek a job, or actually work in Arizona.

4. A police officer may arrest someone, without a warrant, if he has “probable cause to believe” that the person has committed any crime, anywhere, that would make that individual subject to being deported.


  • Kali Borkoski – 0 Promoted Comments

    In this thread, discuss the federal government’s claim that Arizona has attempted to regulate immigration, in conflict with the government’s longstanding and primary role in that field.

    • Larry Joseph – 2 Promoted Comments

      Two things: (1) a State’s applying federal standards is not “regulat[ing] immigation” so much as it is enforcing immigration laws, and (2) a “longstanding and primary [federal] role” is not itself preemptive here.

  • Kali Borkoski – 0 Promoted Comments

    In this thread, discuss whether the Court should grant cert. in the case.

    • Ilya Shapiro – 3 Promoted Comments

      I outlined my views on the merits in SCOTUSblog’s symposium on the case this summer, but here I just want to suggest that the Court ought to grant cert. It shouldn’t do that simply to “get it right” – important as that of course is – but to give guidance to the states about what they can do to fill the vacuum that is federal immigration policy. Congress has done a thorough and bipartisan job of failing to act here, so state officials are understandably jumping in to satisfy their constituent demands. Everyone should welcome the Supreme Court’s clarification of preemption analysis in this area, regardless of what one thinks of the various laws and policies promulgated in Arizona, Georgia, Alabama, Utah, California, Texas, and beyond.

  • Kali Borkoski – 0 Promoted Comments

    What weight, if any, should the Court give to the concerns expressed by foreign countries such as Mexico or, alternatively, what weight it should give to claims by the federal government that laws like S.B. 1070 will harm our relationships with those countries?

    • Lee Gelernt – 1 Promoted Comment

      When foreign governments lodge official concerns about state laws in the U.S., it signals serious issues for our federal government and our national interests. As the Court has noted, the regulation of immigration is constitutionally vested in the federal government. One critical reason for this allocation of responsibility is the fact that immigration policy touches on the United States’ relations with other countries. If the United States believes that the recent anti-immigration laws passed in Arizona and other places harms our relations with other nations, that concern should not lightly be dismissed. Indeed, imagine if all 50 states adopted their own immigration laws and those laws not only conflicted with each other, but with the United States’ foreign policy objectives.

      • Larry Joseph – 2 Promoted Comments

        I do not think that the dispute between the “United States” and the States is as stark, from a federalism standpoint, as Lee Gelernt posits it. The question here is not whether the United States (i.e., Congress) could pass a law that preempts State actions like S.B. 1070. Rather the question is whether Congress did pass such a law. Foreign relations certainly are a concern of the Executive Branch, which Congress could take into consideration in enacting some future law. But current foreign concerns cannot serve as a canon of statutory construction for a previously enacted law. So, the foreign-relations (or political) concerns that underlie the Executive’s litigation strategy can have no relevance to the Court’s resolution of the merits. That said, foreign concerns and the Executive’s foreign-relations concerns could weigh on the Court’s decision on whether to grant cert.

  • Kevin Johnson – 1 Promoted Comment

    As I outlined in my contribution to the on-line symposium on United States v. Arizona, I am not sure how, if it grents certiorari,the Supreme Court will decide the case. It does seem to me, however, that the chances have improved over the last few months that the Court will grant cert.

    The district court in United States v. Bentley, 2011 U.S. Dist. LEXIS 112362 (N.D. Ala. 2011) upheld provisions of the Alabama immigration law that the Ninth Circuit struck down in United States v. Arizona, including the provision requiring local police to check the immigration status of any person who they lawfully come into contact with about whom they have a “reasonable suspicion” is undocumented. A split of authority has emerged and may well soon emerge into a circuit split. Given the national importance of the issues and the emerging split of authority, Supreme Court review, in my view, seems more likely. It also would do much good for the Court to clarify the relative place of states in immigration regulation. State efforts to intervene in immigration matters seem on the rise, not decline.

    Kali Borborski raises important points. It seems to me that it is more powerful for the U.S. government, rather than a private party like the Chamber of Commerce in Chamber of Commerce v. Whiting, to be contending that a state is intruding on federal power and injuring federal interests. It also seems apparent that immigration (1) historically has touched on foreign policy interests of the United States and (2) that the objections of a slew of foreign countries to Arizona’s S.B. 1070 in fact supports the U.S. government’s contention that state immigration regulation can adversely affect U.S. foreign relations.

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