SB 1070 Defeated: Supreme Court Rejects Major Provisions of Controversial Arizona Immigration Law
LIVE UPDATES of the S.B. 1070 Supreme Court Hearings and the wider ramifications.
6/25: On Monday, the Supreme Court ruled in favor of the federal government on 3 out of the 4 major issues, most notably declaring that the Arizona immigration law SB 1070 pre-empted (trumped) federal law. The court rejected the parts of the law that: 1) Make it a state crime for illegal immigrants not to possess their federal registration cards; 2) Make it a crime for illegal immigration to work, apply for work or solicit work; 3) Allow state and local police to arrest illegal immigrants without a warrant when probably cause exists that they committed “any public offense that makes the person removable from the United States.”
The only issue that the Court did not decide was the provision which requires officers to check the immigration status of individuals subsequent to a lawful arrest. This was left to the state courts to interpret further. There is a chance that if the state courts interpret the "status check" provision too broadly, that it will make its way back to SCOTUS as early as next term. The Court suggested that the interpretation would have to be narrow to survive.
Thursday 2:00 PM How the Arizona Immigration Case Could Impact the U.S.
According to the Associated Press, the U.S. could see an official about-face in the coming months in how it confronts illegal immigration if the Supreme Court follows through on its suggestion that it would let local police enforce the most controversial part of Arizona's immigration law.
The justices strongly suggested Wednesday that they are ready to let Arizona enforce the most controversial part of its law, a requirement that police officers check the immigration status of people they suspect are in the country without documents. Such a ruling could codify the type of local enforcement that some local authorities in Arizona have carried out over the last six years and open the door to such enforcement in states with similar laws, such as Alabama, Georgia, Indiana, South Carolina and Utah.
"I think you'll see more involvement by local police in immigration enforcement, an involvement that hadn't previously been seen," Kevin Johnson, law school dean at the University of California-Davis and an expert in immigration law, said of the possibility of Arizona's law being upheld.
Wednesday 1:30 PM Will the the Arizona Immigration Law be Upheld? The New York Times is reporting that SCOTUS seems sympathetic to central parts of the law:
Justices across the ideological spectrum appeared inclined to uphold a controversial part of Arizona’s aggressive 2010 immigration law, based on their questions on Wednesday at a Supreme Court argument.
“You can see it’s not selling very well,” Justice Sonia Sotomayor, a liberal-leaning justice and the first Hispanic appointed to the court, told Solicitor General Donald B. Verrilli. Mr. Verrilli, representing the federal government, was seeking to strike part of the law’s requirement that state law enforcement officials determine the immigration status of anyone they stop if the officials have reason to believe that the individual might be an illegal immigrant.
It was harder to read the court’s attitude toward other provisions of the law, and the final ruling, expected by June, may be a split decision.
Chief Justice John G. Roberts Jr. made clear that the case, like last month’s arguments over President Obama’s health care law, was about the allocation of state and federal power.
“No part of your argument has to do with racial or ethnic profiling?” the chief justice asked Mr. Verrilli, who agreed.
11:50 AM The Wall Street Journal is reporting that the ideological split expected of the Court was nowhere near as clear as it usually is, with liberal Justices recognizing the need for states to have some ability to deal with immigrants within their borders.
Although it appears that the most contentious part of the law, the immigration check based on reasonable suspicion, is likely to fall, the outcome of the rest of the law appears slightly less certain. That said, the appearance of unanimity over some issues suggests that there will at least be some clear guidance come opinion time in June.
Some choice tweets from inside the Court:
NILC @NILC_org Roberts says that #SB1070 is not an effort to enforce federal law, just to advise the fed govt of violators. #justice4AZ 25 Apr 12
NILC @NILC_org J Scalia asks if a state "has to accept w/i it's borders all people who do not have a right to be there if the Feds dont want to remove em. 25 Apr 12
SCOTUSBlog's Tom Goldstein is reporting that the arguments have concluded and that it looks like the 9th Circuit will be upheld.
It seems the arguments ran long. The United States began arguing at 10:40, so should be wrapping up soon.
We are getting some insight from inside the courtroom courtesy of the National Immigration Law Center (@NILC_org).
Chief Justice Roberts asked Solciitor General Verrilli if any part of this law was about racial profiling. Verrillli answered “no,” marking a clear difference between the political debate and the legal one.
Justice Scalia asked Verrilli if the United States had to enforce our immigration laws in a way that “pleases Mexico.”
The liberal Justices seem to be in agreement over the 9th Circuit’s handling, with Justice Ginsburg arguing that immigration is clearly an area of law that is exclusively of federal concern.
Still waiting to hear news about the conclusion of arguments. It seems that arguments may have been allowed to go long, as they did during the health care debate.
The crowd outside the Supreme Court is still growing.
ACLU Live @ACLULive Strong support to invalidate #sb1070. Crowd outside court is growing #justice4az pic.twitter.com/VOBsD9jC 25 Apr 12
Arguments should be ending in the next several minutes - we will have updates shortly thereafter with transcripts and audio to come later today.
The Devil is in the Details
The Court is asked to address the constitutionality of four distinct provisions of the Arizona immigration law:
Requiring police to verify the immigration status of everyone they stop who they reasonably suspect may lack authorization to be in the U.S. Authorizing police to arrest any foreign citizen they believe has committed a deportable offense. Making it a crime for foreigners to fail to carry registration documents. Making it a crime for illegal immigrants to seek or perform work.
While the Court can certainly strike down or uphold all of the provisions collectively, it can also issue four separate outcomes for the four distinct provisions. This could lead to an interesting set of outcomes should the Justices split on whether the provisions stand or fall as a single unit.
When is Helping Not Helping?
The crux of the argument today is likely to turn on whether the Justices consider Arizona’s law to be complimentary or contradictory to federal immigration law. If Arizona hopes to survive judicial review, its going to need to convince the Court that it is doing the former and not the latter.
But how does one do even that?
It’s impossible to say that federal immigration enforcement is consistent. In many cases, conservatives argue, its hard to say that it exists at all. While President Obama has had a far more aggressive deportation report than his predecessor, many border states are still crying out for more federal participation. Five other states have passed copycat SB 1070 laws in the last two years, with five other states still considering implementing similar legislation.
However, being upset about the federal government’s ability (or lack thereof) to enforce its immigration laws is hardly a winning legal argument. Pre-emption works on the basis of whether a federal law exists and whether the issue being discussed is inherently a national issue.
In the 1956 case of Pennsylvania v. Nelson, Chief Justice Warren struck down a Pennsylvania law that made it a state crime to advocate for the violent overthrow of the United States government because “sedition against the United States is not a local offense. It is a crime against the Nation. As such, it should be prosecuted and punished in the Federal courts.” Warren went on to argue that allowing states to inconsistently enforce federal law would create problems for federal administrators and for the separation of powers between the federal government and the states.
Arguing that immigration is not a national issue appears to be an uphill battle at best. Clement will likely try to sidestep the argument by hammering the point that Arizona is helping the federal government enforce its laws without going beyond what the federal laws call for. Verrilli will likely respond that how Arizona perceives its participation is irrelevant, what is relevant is that the law conflicts with federal law and is therefore pre-empted and must be struck down.
Because the political overtones inherent in the immigration debate are less present in this debate over the application of centuries old legal doctrine, the final vote may not be as contentious as Arizona supporters may hope.
For those interested in diving deeper on the legal issue of SB1070, check out the following pieces:
SCOTUSBlog’s Amy Howe – Arizona Law Preview in Plain English
Andrew Cohen’s piece from The Atlantic.
And of course, what would a Washington DC story be without NPR’s Nina Totenberg’s Morning Edition clip.
The sole opinion issued today comes in US v. Home Concrete, where Justice Breyer joined the conservatives to affirm an IRS interpretation of a tax issue. Arguments should get underway any minute now.
SCOTUS & SB 1070 101
For the second time this term, the Supreme Court will hear an argument concerning one of the more contentious issues in American politics over the last several years, the Arizona immigration law. Although the political question before the Court this morning is undoubtedly charged and contentious, the legal question is far more nuanced than pundits would have us think.
The faces in the court room should look familiar to those who followed the Obamacare debate as well. Solicitor General Donald Virrilli will be back representing the United States and former Solicitor General Paul Clement will be at the podium on behalf of Arizona.
This morning, the Court must determine whether the Constitution’s Supremacy Clause pre-empts Arizona’s law from existing. In layman’s terms, the pre-emption doctrine holds that states cannot pass laws that conflict with federal law because federal law is supreme.
The Department of Justice contends that four provisions of Arizona’s SB 1070 conflict with federal immigration law and must therefore be struck down.
Arizona argues that its law is cooperative and functions to assist the federal government, not conflict with it, and therefore should be left alone as an extension of federal law.
So far, the courts have agreed with the Department of Justice and ruled against Arizona at both the trial and appellate level. This is a disadvantage for Arizona, as the result of a 4-4 split Court (Justice Kagan is recused) would uphold the 9th Circuit’s decision by default, resulting in the law being struck down.
The session is expected to get underway in 15 minutes at 10AM EST. First, the Justices will swear in new members to the Supreme Court bar, deliver opinions and then get down to arguments, which will last an hour.
SCOTUSBlog is live-blogging opinion announcements here.
Transcripts will be posted later today but audio will not be available until Friday.
7:00 AM: 3 Ways the SCOTUS Decision Will Impact America: PolicyMic pundit Daniel Centina neatly explains how the Court’s decision could impact American politics.
1) Arizona Gov. Jan Brewer: If her law is struck down, it will raise questions about her acumen as governor.
2) Effects on States: Currently, five other historically red states – Alabama, Indiana, Georgia, South Carolina, and Utah – have passed copycat bills since Brewer signed S.B. 1070 into law on April 23, 2010. Declaring the Arizona bill unconstitutional would severely limit these and other states’ efforts at curbing immigration and invite suits against those copycat bills.
3) Impact on the 2012 Election: The timing of the case does not bode well for Mitt Romney, who now finds himself in a tight spot. The former Massachusetts governor has been hit hard for questionable comments already, including his promise to, if elected, veto the DREAM Act if it ever makes its way out of Congress. More specifically, Romney allegedly characterized the Arizona immigration law as a model. Considering these positions, it’s hard to see how Romney won’t be hurt in November.
6:30 AM: A Question of Foreign Policy: Here’s some more background: The Ninth Circuit explained that federal immigration law aims for a unified immigration policy because of the profound implications on foreign policy. The court found persuasive evidence that Arizona’s immigration law was harming American foreign policy: at least 10 Latin American governments have harshly criticized the law. Mexico has taken affirmative steps to protest the state law, as the nation refused to participate in a U.S.-Mexico Border Conference and put on hold discussions concerning an international agreement concerning national disasters. The court emphasized that the federal government has control over such issues of foreign policy, not individual states such as Arizona.
On Wednesday, the Supreme Court will hear oral arguments over the highly controversial Arizona v. United States immigration case.
The case questions the legality of the Arizona law S.B. 1070, which granted state law enforcement broad authority to enforce an immigration policy designed to identify and arrest undocumented immigrants. The law’s most controversial provisions allowed for state police to check a person’s immigration status if the officer held “reasonable suspicion” and further empowered the police to arrest a person they believed was deportable.
The law was signed by Arizona Governor Jan Brewer, who defended the law as a necessary measure because the federal government itself had not done enough to control immigration. Thus, Brewer argued, it was the state’s responsibility to fill that void.
The Court will hear oral arguments today, starting at 10 a.m.
Potential outcomes: Because Justice Kagan has recused herself, it is possible that the Supreme Court will result in a split 4-4 vote at Friday’s post-argument conference and refuse to issue a binding opinion, upholding the lower court opinion by default. If there is no split, the opinion will issue in June as expected. Either way, the fate of Arizona's divisive immigration law will be known around the same time as the fate of President Obama's health care reform.