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Arizona appeals on alien control law

UPDATE August 12: The petiton has now been docketed as 11-182.

NOTE TO READERS: This blog recently published an on-line symposium discussing the validity of Arizona’s new alien control law.  All of the articles in that series are available at this site.


The state of Arizona on Wednesday afternoon asked the Supreme Court to put back into effect four key parts of its controversial law — known as S.B. 1070 — giving police new duties to check up on the legal status of individuals who appear to be undocumented immigrants.  The petition, found here, raised a single question: whether federal immigration laws bar the Arizona approach.  The state argued that it “bears the brunt of the problems caused by illegal immigration,” as the “gateway for nearly half of the nation’s illegal border crossings.”  And it seeks to put heavy blame on the federal government for not enforcing federal laws vigorously enough against that traffic.

At issue in the case is not only the fate of Arizona’s specific law, enacted 16 months ago, but also the broader question of how far states may go to adopt their own measures to control those who have entered the country without legal permission to do so.  The Ninth Circuit Court decision barring enforcement of the four provisions at issue, the state asserted, “casts constitutional doubt on dozens of statutes enacted by other states.”  The state frames its claim to authority as the legal right to cooperate with federal enforcement, not to dominate immigration policy.  “It is no small matter,” the state contended, “to conclude, as the Ninth Circuit did, that only the national government in Washington can address this problem.”

Seeking to head off the government’s claim that Arizona was trying to use powers that belong solely to federal officials, the Arizona petition contended that the state, in enacting S.B. 1070, “was acutely aware of he need to respect federal authority over immigration-related matters.”  The resulting law, it added, authorizes cooperative law enforcement, and imposes sanctions that consciously parallel federal law.”  And yet, despite that effort, the government “took the extraordinary step of initiating a suit to enjoin the law on its face before it ever took effect.”

The state insisted that S.B. 1070 fits within an explicit clause in federal immigration law that authorizes the states to cooperate in enforcing the restrictions on undocumented immigrants, and allows states to do so without having to get express permission from Congress to do so.  In a fervent plea of states’ rights, the state argued that “states, unlike federal agencies, are not creates of the federal Congress and do no depend on federal statutes for authorization.”

The four parts of the state law that are now on hold, while their validity is being tested in the Ninth Circuit Court, are:

First, police are required, when they make any stop or arrest, to try to determine the individual’s legal right to be in the U.S., if the officer has “reasonable suspicion that the person is an alien and is unlawfully present” in the U.S.  If an individual is arrested, he or she cannot be released until immigration status is verified by the federal government. Section 2(B).

Second, the law makes it a state crime for intentionally failing to obtain and carry legal immigration papers with them in the state. Section 3.

Third, the the law makes it a misdemeanor under state law for an undocumented immigrant to apply for a job, publicly solicit a job, or actually work in the state. Section 5(C).

Fourth, police are allowed to arrest, without a warrant, if the officer has “probable cause to believe” the person to have committed any crime, anywhere, that would make that individual subject to being deported. Section 6.

The state, in its appeal, complained that the Ninth Circuit — even though faced with a “facial challenge” (that is, one contending that the law is invalid even as written, without ever being enforced) — failed to make the required analysis of whether there were, in fact, ways to enforce the Arizona provisions without intruding on federal immigration powers.  Instead, the petition said, the Circuit Court said the law could not be enforced validly in any way because, as written, it conflicts with Congress’s intent in passing federal immigration statutes.

Arizona’s challenge to the Ninth Circuit order blocking the four provisions has been filed in ample time for the Court to agree to hear the case, if it is going to do so, and to decide it in the coming Term that opens on October 3.  The federal government has 30 days to reply to the petition, but may seek added time to do so.  Even if it does, there appears to be plenty of time for the case to be granted, briefing, argued and decided before the Court finishes its coming Term.

The new petition made a point-by-point defense of each of the four provisions at issue, but also sought to take advantage of the Court’s ruling last Term upholding a separate Arizona law that imposed severe penalties on businesses that employed undocumented immigrants.  (Chamber of Commerce v. Whiting, 09-115, decided May 26, and found here.)   That decision, the petition contended, meant that “this Court has already rejected the argument that states have no role in enforcing federal immigration law,” because of the Whiting decision and one by the Court in 1982, in the case of Plyler v. Doe, dealing with the rights to education of children of immigrant parents.

Although the Plyler decision struck down a Texas law against education for such children, the petition said the Court, in reaching that result, had expressly upheld state power “to act with respect to illegal aliens at least where such action mirrors federal objectives and furthers a legitimate state goal.”

The Ninth Circuit ruling at issue, the state argued, cannot be reconciled with those past precedents of the Justices.

Recommended Citation: Lyle Denniston, Arizona appeals on alien control law, SCOTUSblog (Aug. 10, 2011, 3:55 PM),