Why the Court will duck S.B. 1070 case (for now)

The following is an essay for our symposium on Arizona v. United States by Peter Spiro. Professor Spiro teaches immigration and international law at Temple University.  He is the author of Beyond Citizenship: American Identity After Globalization (Oxford) and a contributor to the international law blog Opinio Juris.

 

At the threshold, I suspect that the Court will punt on the case.  The petition is before the Court from an interlocutory appeal. That means declining review at this point won’t foreclose it at a later date.  In the meantime, however, the Court might just hope that the case goes away.

The politics of immigration are a fickle thing; what looks politically bullet-proof today may turn into a liability tomorrow.  S.B. 1070 continues to garner significant political support, to the point that it counts almost as an article of faith to among Arizona Republicans.  But there are constituencies even within the Republican Party that have reason to wish it away.  Business, especially the powerful convention and tourist sector, has taken a hit as a result of S.B. 1070 and calls from out-of-state entities to boycott Arizona.  Even if the boycott has not perhaps been as successful as S.B. 1070 opponents would have hoped “ they were, for instance, unable to persuade Major League Baseball to relocate this week’s All- Star Game from Phoenix the shift of even marginal business has hit hard against the difficult economic landscape.  Indeed, this Term’s decision striking down Arizona’s public financing scheme may help efforts to shelve S.B. 1070.  The scheme helped blunt the influence of campaign contributions from businesses.  Business interests have been an important brake on anti-immigrant measures in other states.  With public finance off the table for the moment, state legislators may be more amenable to business influence, which in this case cuts in a progressive direction.

On the assumption that S.B. 1070 isn’t going away, I still think the Court will keep its distance from the Arizona case at this time.  There is the background principle of percolation, first of all. There may be other similar state measures that make it through the legislative gates, which would generate an array of perspectives from the lower courts.  Just in the recent days, there have been relevant decisions from federal district courts in Georgia and Indiana on state immigration measures.  Another law out of Alabama “ in some respects harsher than Arizona is sure to provoke legal challenges.

As a general matter, the Court doesn’t like to engage an issue before it has to.  Immigration enforcement is a political hot potato that doesn’t by itself fit into any pressing judicial agendas.  Obviously, there are no splits on the question at this time, though some may develop.  Assuming that other states persist in enacting their own restrictionist agendas, finally, waiting will also give the Court a better idea of the different possible approaches on the part of the states, which will make them easier to sort.  Arizona’s approach may seem more or less reasonable against an array of other state measures.  Finally, on the cert. question, it’s also no small matter that the Court is just coming off of Whiting, its first decision in more than thirty years to touch on the relationship of federalism and immigration enforcement.  The Court’s decision in that case will affect lower court approaches to immigration federalism.  Better to let Whiting to play out among the lower courts before revisiting the issue.  So I don’t think it a foregone conclusion that the Court will grant Arizona’s petition.

If the Court were to grant review – it will most likely have to address this kind of statute if states stick to their guns – Whiting sets some parameters, although the ultimate resolution here is anyone’s guess at this point.  Although it was framed as a narrow question of statutory intention, Whiting did take the hair-trigger approach to state immigration activity off the table.  That is, by validating the Arizona measure at issue there, the Court demonstrated that some state initiatives are likely to pass muster.  This posture appears to move the Court away from Hines v. Davidowitz, the 1941 decision in which the Court struck down a state alien registration measure that tracked a parallel federal law.  That case showed a low tolerance threshold for state immigration activity.  Whiting points in the other direction.

This shouldn’t be all that surprising.  Members of the Court can hardly be ignorant of the persistent failure of the federal government to enact comprehensive immigration reform, and there must also be an understanding of state frustration with the abdication of federal authority.  Compared with Hines (decided in the lead-up to World War II), the international backdrop is not nearly so sensitive.  Mexico and other foreign countries may be unhappy about S.B.1070 and other state efforts to crack down on undocumented immigrants, but they’re not about to send in the troops.  The Court may be comfortable giving the states some latitude in the area, especially against the premise that Congress can always step in to squash state activity if it gets out of hand.  (There is a parallel here to the Court’s recent refusal to stay the execution of a Mexican national whose consular notification rights had been violated, notwithstanding protests by Mexico and other countries.)

That’s not to say that S.B. 1070 would ultimately withstand constitutional attack, or not all of it anyway.  I think the most vulnerable provision makes unauthorized presence under the immigration laws in effect a crime under state law.  Proponents argue that the provision is consistent with a federal provision penalizing the failure by non-citizens to carry alien registration documents.  But the federal law has never been enforced, and unauthorized presence is not by itself a federal crime (illegal entry is, but about half of all undocumented aliens enter the country legally).  I think the Court will see the Arizona tactic as too clever by half and find the measure preempted.  A much closer call: the Court’s disposition of S.B. 1070’s requirement that law enforcement officials check immigration status when they have reasonable suspicion of undocumented status.  The Court might be more inclined to accept the compatibility of this provision with the federal scheme, especially insofar as Arizona itself cannot effect deportation of any noncitizens, even if they are found out of status.

The balance here will be tipped one way or the other depending on whether the Court views this and related cases as federalism cases or as immigration/foreign affairs cases.  If it’s the former – and Whiting seems to point in this direction – the agenda has been to expand state authorities.  If it’s the latter, the Court will be more skeptical of state activity, in a tradition dating back to Chy Lung v. Freeman (1876).  Even if the Court decides against taking the Arizona case for the coming Term, it may have a harder time avoiding broader questions of immigration federalism in coming years.