Supreme Court Takes Up Controversial Arizona Immigration Law

Apr 26, 2012

By Chris Wilkerson, staff writer – April 26, 2012

As the U.S. Supreme Court considers provisions of Arizona’s controversial 2010 immigration law, the country will wait to find out if the state overstepped its authority in adopting new policy.

Early hints of the court’s feelings about the matter seemed to indicate that many of the justices agree with Arizona.

Immigration has been a hot topic in the United States since the day the second person set foot on the continent, and it will continue to be controversial regardless of what the Supreme Court decides.

What’s at issue before the Supreme Court now is whether Arizona’s law augments and supports federal immigration policy or subverts the government’s efforts.

Arizona contends that the steps it took with S.B. 1070, or the Support Our Law Enforcement and Safe Neighborhoods Act, were necessary because the state was in an emergency situation with illegal immigrants pouring over the border and smuggling drugs in with them.

The Court is considering four specific provisions of the law:

  • Police are obligated to determine people’s immigration status when in the course of a regular stop, arrest or detention if there is a reasonable suspicion that the person is in the country illegally.
  • People who are arrested cannot be released until they produce documentation
    that they are in the country legally.
  • The law makes it illegal for unregistered immigrants to work or seek to find work.
  • Anyone suspected to be in the country illegally can be arrested without a warrant.

The Justice Department used lower courts to successfully block these four provisions of the Arizona law. Arizona contends that the state’s law simply seeks to enforce federal law already on the books. The federal government argues that there are laws in place to prevent states from taking immigration policy into their own hands.

Solicitor General Donald Verrilli insists that states cannot each create their own immigration policy. “A scheme that depends on national uniformity cannot coexist with a patchwork of different state regimes, whether that patchwork involves 50 different decision-makers, 50 different remedies, or 50 different substantive rules,” he wrote. [1]

A substantial amount of the public debate about the Arizona law as well as similar ones that have popped up in other states like Utah, Alabama and South Carolina, has centered on the race element of the law. Critics argue that requiring a law enforcement official to determine who looks like they could be in the country illegally is inviting racial profiling. Civil rights lawsuits complaining that the law unfairly targets Hispanics remain on hold until the Supreme Court decides this case.

The Constitution’s Supremacy Clause mandates that federal law trumps state law when the two conflict. There are no federal laws that specifically conflict with the blocked provisions of the Arizona law, so the court will have to decide if federal and state laws conflict enough here that the state must back down. [2]

The justices will have to determine if the harsher punishments provided for in the state law will impede the ability of the federal authorities to do their job.

Verrilli’s brief asked the judges to consider the effect various state laws would have on foreign policy relationships.

Part of Arizona’s argument is that the state bears a disproportionate burden with regards to the immigration battle and it had to act because the federal government was not doing enough to protect it.

The Supreme Court seemed to agree with Arizona on that point as justices from across the ideological spectrum suggested in their questioning that the state has a problem with illegal immigration and it should be allowed to address that problem. [3]

In recent years, there has been a significant step up of enforcement along the borders in California and Texas. The desert in New Mexico makes crossing its border a likely death sentence. That means immigrants with every imaginable intent – from those seeking to make money to send home to their family to those dealing drugs – have been funneled to Arizona. About a third of all illegal border crossings happen in Arizona, according to a brief from Paul Clement, who represents Arizona in the case.

The court’s attitude toward the provision of the law that requires law enforcement officials to determine the immigration status of anyone suspected to be in the country illegally during routine traffic stops was easy to read by journalists covering the hearing.

The nation’s first Hispanic Supreme Court Justice Sonia Sotomayor went so far as to imply that Verrilli’s arguments were not sticking. “You can see it’s not selling very well,” she told Verrilli as he tried to argue that the provision conflicts with federal law.

Chief Justice John Roberts specifically asked Verrilli to reaffirm that the federal government’s case is not about racial profiling.

Giving hope to supporters of Arizona’s law, the court’s swing vote, Justice Anthony

Kennedy asked Verrilli is a state has to accept people who are inside its borders illegally under federal law. His implied answer was “no.” [4]

The court’s views on the other provisions of the law in question were more difficult to determine.

Clement was questioned most aggressively about the provision of Arizona’s law that requires suspected illegal immigrants be held regardless of whether they are being charged with other crimes, until they can produce documentation. Even conservative Justice Samuel Alito seemed uncomfortable with that provision.

The court will make decisions about the controversial provisions in the Arizona law with only eight justices. Justice Elana Kagen is sitting out this case since she worked in the office of the solicitor general when the case came up. In the event of a split decision, the lower court’s findings are upheld.

The final decision is expected in June around the same time the court is expected to rule on the constitutionality of President Barack Obama’s health care law.

The combination of these two decisions could give either the president or his likely opponent Republican nominee Mitt Romney a boost going into this fall’s election.

Arizona Gov. Jan Brewer was in Washington on the steps of the courthouse on Wednesday to speak to supporters. She also heard a lot of boos as the block was packed with supporters and protesters.