Justices Not Buying Administration’s Immigration Enforcement Supremacy Bid

When the U.S. Supreme Court heard oral arguments this week on the Arizona SB 1070 case, the Justices left little doubt that the Obama Administration’s central argument – Congress gave the feds sole authority over immigration – just didn’t hold water. The discussion focused rather on how the Arizona law might work in tandem with federal law, or possibly be in conflict. This is good news for those interested in expanding state and local government immigration enforcement efforts.

The question before the Court is whether four provisions of S.B. 1070 are preempted by federal law:

Section 2(B), which requires police, after a lawful stop and if practicable, to check the immigration status of suspected illegal aliens;

Section 3, which makes it a state crime for an alien to be in Arizona without valid federal immigration documents;

Section 5(C), which makes it a state crime to apply for or hold a job in Arizona without authorization; and

Section 6, which gives police the power to arrest someone, without a warrant, if an officer has probable cause that suggests the person committed a crime that makes him/her deportable.

Paul Clement, the lead attorney for the State of Arizona, pushed two themes at the hearing. First, the federal government’s failure to enforce immigration laws caused a crisis in Arizona that made it necessary to enact SB 1070. Second, SB 1070 is not preempted because it does not conflict with federal law or create its own system of immigration regulation. Instead it mirrors federal law and helps the federal government to enforce it.

So Clement argued that under Sections 2(B) and 6 — police status checks and warrantless arrests — police officers are simply helping to identify illegal aliens whose destiny is left up to the feds. Under Section 3, which concerns immigration documents, the state is simply prohibiting what federal law already prohibits. Section 5 – the no jobs without authorization provision — furthers the crack down on illicit employment by mirroring state penalties for illegal aliens.

Solicitor General Donald Verrilli, on behalf of the federal government, painted a very different picture for the Justices. He said Congress gave the federal government sole authority over immigration. Although Arizona claims to want to enhance federal enforcement, it is in fact interfering with both federal priorities and foreign policy. Arizona can’t be allowed to implement Attrition Through Enforcement because Congress has already set up comprehensive schemes for registering immigrants and allowing them to work. And the state certainly can’t decide who should be detained or deported.

It was apparent from Justices’ statements, and their questions for Clement, that most would accept the requirement for police status checks, especially since police can already request such checks at their own discretion. Unlike open border groups, the Justices seemed to accept that Arizona police would be circumspect in their implementation of the law. What they needed was reassurance that suspected illegal aliens would not be unnecessarily detained and Clement seemed to come through. However, some Justices had difficulty with the concept of creating a state crime for working without authorization or failure to carry federal registration documents.

General Verrilli’s case about federal supremacy never really got off the ground. Justice Sotomayor, for example, said that Verrilli’s arguments left her “terribly confused.” She could not understand what was wrong with a system in which an officer contacted federal officials and released the people the feds did not want detained. She even made the point that the Justices weren’t buying Verrilli’s arguments and asked if he had any other cogent ideas.

Based on the interrogatories, it appears that Justices Scalia and Roberts are siding with two or more Arizona provisions. Justice Thomas, who said nothing at the hearing, is a likely third vote because he is known to oppose challenges like the one Verrilli offered. Justices Kennedy and Alito should fill out the majority that can rule in favor of some provisions.

Justices Breyer, Ginsburg, and Sotomayor could have but did not speak out on behalf of the fed’s challenge, although they were definitely troubled by some provisions and the prospect for long detentions. That means the Court could uphold some sections with more than a five-vote minimum – an exciting prospect.

Court observers think a ruling will be released by June, at which time the case will be remanded to a District court. There are ongoing related challenges in that court, plus challenges to other SB 1070 provisions that the Supreme Court did not consider. As such, it is not clear when affirmed provisions can take effect.

The Supreme Court’s decision may have ramifications for states with laws similar to SB 1070 – Alabama, Indiana, Georgia, South Carolina and Utah. Opponents have already mounted challenges to those laws so the Court’s ruling on police immigration status checks, for example, could influence that litigation.

Will a green light on some measures prompt other states to act soon? Most legislatures have already completed their 2012 session so don’t look for much action this year. Pennsylvania, which remains in session throughout most of the year, may take up Rep. Darryl Metcalfe’s enforcement bills. It’s also possible but unlikely that a Mississippi bill could be revived.

Next year is another matter. You could see bills re-introduced in a number of states, including Colorado, Kansas, Louisiana, North Carolina, Tennessee and Texas.
You can read a transcript of the Supreme Court hearing here.

VAN ESSER is the Chief of Membership Services for NumbersUSA