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No sequel, yet, on alien controls

The Supreme Court, having taken one recent step to clarify the power of state and local governments to impose their own controls on illegal immigrants, chose on Monday to step to the sidelines, and decided — for now — not to provide further guidance.   It sent an important new test case, from Hazleton, Pa., back to a lower court for a new look, and it simply refused to hear another new case on the rights of undocumented immigrants when they attend college in the U.S.    In other, unrelated action Monday, the Court brought near to a close a two-year courthouse battle over the U.S. Senate seat for Illinois that President Obama used to hold; the Justices simply opted not to get involved in that fray.

With immigration controls a hot controversy in state legislatures, in Congress, and the courts, the Justices are being called upon more frequently to sort out the legal rules.  The Court spoke out on the subject in an important ruling last month (Chamber of Commerce v. Whiting, 09-115).  And, despite Monday’s refusal to say anything further at this point, the cases will continue to develop, and more will be appealed — beginning this summer — to the Justices.  Arizona’s tough new restrictions, curbing even how aliens may move about in the state, is likely to be at the center of the next appeal to arrive, perhaps by mid-July.

As matters now stand with the Court, it appears that the federal government clearly retains the primary authority to deal with aliens living in this country without legal permission to do so, but that — according to the Whiting decision — that is not an exclusive role, and state and local governments will be allowed some room to experiment with controls of their own, at least in regulating the opportunities for aliens to get jobs.

Like the state of Arizona, whose jobs law was at issue in the Whiting case, the city of Hazleton, Pa., had decided to put some strict new curbs on the hiring of undocumented aliens.   But the Hazleton case also would have given the Supreme Court an opportunity to say what state and local governments may do about another example of alien control — strict limits, as in the Hazleton ordinances, on providing housing to those individuals.   By sending that case (Hazleton v. Lozano, et al., 10-772) back to the Third Circuit Court, the Justices gave that tribunal the first chance to see how the Whiting precedent bears, if it does, on the housing question.

Congress does not often weigh in these days on the immigration issue, because there appears to be something close to legislative gridlock on measures in that field.  But one law that Congress did pass was tested anew in the Court.  Part of the last major overhaul of immigration law in 1996, that law imposed a restriction on tuition breaks for undocumented aliens attending college within the U.S.   It declared that no illegal immigrant should be allowed to pay only in-state college tuition rates, unless every other non-resident, who were citizens, going to college in that state got the same privilege.  That was the law that the Justices were asked in a new case to reinforce; the Court turned aside the plea without comment in the case of Martinez, et al., v. University of California Regents (10-1029).

California’s legislature had found a way around the restriction, thus allowing at least some undocumented aliens to continue to enjoy in-state tuition rates even while citizen non-resident students did not get those rates.  A group of non-resident citizen students going to college in California, and paying the higher non-resident tuition, argued in their appeal that California was flouting the 1996 federal law.  A total of nine states, the petition asserted, have now decided simply to circumvent the federal restriction.

The Justices’ order declining review leaves both the California arrangement, and the federal restriction, intact.   That leaves states some leeway to continue to experiment with other benefits for undocumented immigrants.  (Repeated efforts have been made in Congress to repeal the federal tuition restriction, but those efforts have faltered amid Congress’s inability or unwillingness to act on significant immigration measures.)

Although the Court did grant two new cases for decision at its next Term (see below), much of its most significant action on Monday beyond the merits decisions it issued came in the form of denials, as with the immigration cases.   The Court refused to hear two petitions that were close to the last remnants of the legal contest over the choice of a successor to President Obama in a Senate seat for Illinois.

Former temporary Sen. Roland W. Burris, who held the seat by appointment, pursued one of those appeals, seeking to contest his exclusion from the ballot last November when a new elected successor was chosen.  (Burris v. Judge, 10-367).   The state’s governor, Pat Quinn, pursued the second appeal (Quinn v. Judge, 10-821), arguing that the Seventh Circuit Court was simply wrong in ruling that the Seventeenth Amendment required that there be an election every time there is a vacancy in a U.S. Senate seat.

Those two cases had been listed for consideration by the Court several times in February and March, but no action emerged after that, until Monday’s denial in two simple orders which, as usual, contained no explanation either of why they had been held without action and why they ultimately were denied.   There are a few loose ends to the Senate legal contest still pending in lower federal courts, but those are likely to be dismissed now that the Supreme Court has acted.

Among other denials, the Court turned aside an appeal by General Electric  Co., seeking to revive a constitutional challenge it had leveled against the way the Environmental Protection Agency enforces the Superfund Law — the law that gives the government wide authority to order the cleanup of hazardous waste dumps.  GE had lost its challenge in lower federal courts, but sought to put it back on track in the Supreme Court.  The Justices refused in General Electric v. Jackson, et al. (10-871).

The Court accepted two cases, to be argued and decided in the next Term that opens on Oct. 3.

In one of those, the Court agreed to decide whether federal railroad safety laws, including the Boiler Inspection Act that dates to 1911, allow the states to provide court remedies under state law when a rail worker is injured or dies while working to repair a locomotive or its parts.  Since Congress passed a revised law on the subject of rail safety in 1992, there has been a string of court rulings finding that the federal laws had displaced the state-law remedies.   Urging the Court to stop that trend, the estate of a railroad worker who died from mesothelioma, allegedly after being exposed to asbestos in locomotive boilers and brakes, appealed a ruling against him by the Third Circuit Court.

The U.S. Solicitor General had urged the Court to grant the preemption issue.  The Court did so, but in another case than the one on which the government had offered its views.  The granted case is Kurns v. Railroad Friction Products Corp. (10-879).  Two other cases on the same subject (10-272 and 10-520) apparently will be on hold until Kurns is decided.

The other newly granted cases came in an area on which the Court has been getting a rising number of petitions — how to deal with the problem of criminal defense lawyers who perform inadequately at trial or on appeal.   The Court, however, has been giving conflicting signals lately, especially on whether that problem can be remedied when it exists in court challenges after a guilty verdict has become final.  It granted stays, for example, in a pair of death-row cases raising that issue, and then simply denied review of the cases when they came up for further consideration (Bradford v. Texas, 09-11519, and Foster v. Texas, 10-8317).

Choosing a case that raises a quite narrow version of that issue, the Court said it would decide, next Term, whether there is a constitutional right to an effective defense lawyer, to challenge the ineffectiveness of a lawyer at the earlier trial, if that question can only be raised in a post-conviction setting.  The new case, involving a child sexual abuse prosecution in Arizona, is Martinez v. Ryan (10-1001).

Recommended Citation: Lyle Denniston, No sequel, yet, on alien controls, SCOTUSblog (Jun. 6, 2011, 1:52 PM),