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Court to consider Arizona immigration law: A preview in Plain English

This morning at ten o’clock the Court will hear the final oral argument scheduled for this Term.  Just as it did last month, the Court will be considering a highly divisive issue during the middle of the presidential campaign.  And the cast of characters will be much the same as well:  former Solicitor General Paul Clement will represent the state, while the current Solicitor General, Don Verrilli, will argue on behalf of the federal government.  But this time the issue is immigration, rather than health care, and the federal government is the challenger:  it will be asking the Court to uphold the lower courts’ rulings that several provisions of S.B. 1070, Arizona’s controversial immigration law, cannot go into effect because they conflict with federal immigration laws.  The case, Arizona v. United States, is likely to cap off what will almost certainly be a historic Term at the Court; let’s take a closer look at it in Plain English.

As I explained when the Court agreed to take up the case back in December, the Arizona legislature passed S.B. 1070, the law at issue in the case, because it believes that the federal government has not done enough to combat illegal immigration.  The official goal of the law is “attrition by enforcement” – that is, putting strict controls on illegal immigrants in the hope that they will become fed up and return to their home countries.  Before the law went into effect in 2010, the federal government went to court to block the state from enforcing the law, arguing that federal immigration law trumped, or “preempted,” the state law.  The lower courts agreed with the federal government, and late last year the Supreme Court granted the state’s request for review.

Four different provisions of S.B. 1070 are currently before the Court.  One provision, Section 2(B), requires police officers to check the immigration status of anyone whom they arrest; it also allows police to stop and arrest anyone whom they believe to be an illegal immigrant.  Section 3 makes it a crime for someone even to be in the state without valid immigration papers, while Section 5(C) makes it a crime to apply for or hold a job in Arizona without proper papers.  Finally, in Section 6, the law gives a police officer the power to arrest someone, without a warrant, if the officer believes that he has committed a crime that could cause him to be deported, no matter where the crime may have occurred.

In its brief to the Supreme Court, Arizona emphasizes two themes.  First, when the federal government has enforced its immigration laws at all, it has at best done so unevenly, resulting in a massive influx of illegal immigration.  Arizona has been especially hard hit by illegal immigration, which has sharply increased the state’s crime rate, required the state to spend hundreds of millions of dollars each year on social services for illegal immigrants, and reduced wages for the Arizona residents who are authorized to work in this country.

Because the federal government has failed to act to address this crisis, Arizona explained, it enacted S.B. 1070.  This goes to the state’s second theme:  its efforts to regulate illegal immigration within its borders do not conflict with federal law.  In fact, it’s just the opposite.  With Section 2(B) and Section 6, for example, which require police officers to verify the immigration status of arrestees and authorize warrantless arrests when police believe that someone has committed a crime that could get him deported, all that the state is trying to do is enforce existing federal laws, which federal immigration laws specifically authorize it to do.  Similarly, in Section 3, which makes it a crime to be in Arizona without valid immigration papers, the state is simply prohibiting something that federal law also forbids.  Finally, Section 5  — which makes it a crime to apply for or hold a job in the state without proper papers – is constitutional because federal laws only trump state laws that punish employers who hire illegal immigrants; those laws do not say anything about (much less prohibit states from) punishing the illegal immigrants themselves for seeking work.

Not surprisingly, the federal government paints a very different picture of the case.  What Arizona characterizes as “cooperation” is, in the government’s eyes, more like a serious thorn in its side as it attempts to balance a variety of concerns – such as foreign policy, national security, and individual freedoms.  For this reason, the government explains, Congress gave it sole authority over immigration.  With S.B. 1070, Arizona is basically trying to elbow its way in and require its officials to strictly enforce federal immigration laws, even if it upsets the balance that the government has tried to strike.

Each of the provisions of S.B. 1070 must, the government argues, give way to federal immigration laws.  For example, Congress has set up comprehensive schemes to govern when and where immigrants must register in this country (and, once registered, prove that they have done so); a similar system is in place to deal with which immigrants may work and to impose penalties on those who work without proper authorization.  Therefore, Arizona cannot enforce its own laws – Sections 3 and 5 – on these same questions.  And the two remaining provisions of S.B. 1070 must also fall, because they interfere with the discretion that the federal government has to decide whether an immigrant should be removed even if he can be.

Many people will be watching this case closely, not only for what it means for Arizona but also because the Court’s decision is likely to affect tough immigration laws passed in other states, including Alabama, Georgia, South Carolina, Utah, and Indiana.  Significantly, just last Term, in a case called Chamber of Commerce v. Whiting, the Court ruled on the constitutionality of another Arizona law that imposed harsh punishments on businesses in the state which employed illegal immigrants.  By a vote of five to three, the Court allowed the law to stand, over the objections of the federal government.

The Court’s newest Justice, Justice Elena Kagan, did not participate in the Whiting case because she was involved in it while serving as the Solicitor General, and she will sit this one out for the same reason.  With Justice Kagan out, and because the federal government won this case in the lower court, the lower court’s decision would stand if the remaining eight Justices split evenly (although it would not carry any weight beyond this case).  But to do that, the government must convince at least one of the five Justices who voted to uphold the law in Whiting that S.B. 1070 is different.  We are likely to have a better sense of how likely the government is to succeed after the oral argument today; we will be back to report on it in Plain English.

Recommended Citation: Amy Howe, Court to consider Arizona immigration law: A preview in Plain English, SCOTUSblog (Apr. 25, 2012, 9:12 AM),