On Wednesday, the U.S. Supreme Court will hear oral arguments in Arizona v. United States, in order to determine the constitutionality of Arizona’s infamous immigration law, S.B. 1070. As the final argument in the Court’s 2011 term, it promises to be a fitting finale for a blockbuster SCOTUS year. When coupled with the Supreme Court’s decision over the Affordable Care Act (commonly known as Obamacare), the Arizona case is likely to help establish the boundaries of federalism for years to come.
As the Justices mull over S.B. 1070 this week, we will soon know the true impact of this controversial case. Because Justice Kagan has recused herself, it is possible that the Supreme Court will vote down ideological lines 4-4 at Friday’s post-argument conference and refuse to issue a binding opinion until the issue is before the whole court in a later case. If, however, Friday passes without such news, then the stage is set for June decision outlining the extent to which states can regulate immigration, if at all.
Although the Supreme Court is almost certain to be divided, it is likely to strike down the Arizona immigration law, at least in part. The issue presented is whether Arizona’s immigration law impermissibly infringes on the federal government’s expansive power to regulate immigration in a uniform fashion.
Signed into law in 2010 by Arizona Governor Jan Brewer, S.B. 1070 granted state law enforcement officials wide authority to enforce an immigration policy designed to identify and arrest undocumented immigrants. The law’s most controversial provisions require state police officers with “reasonable suspicions” to check the immigration status of an individual during traffic stops, and likewise empower police to arrest a person when they believe the person is deportable. Other parts of the law make it a state crime to violate federal immigration registration and employment requirements.
Following passage of S.B. 1070, the Department of Justice sued Arizona, asserting that the Immigration & Nationality Act (INA) bestows upon Congress the authority to regulate immigration. The United States argued that the Arizona law conflicted with the federal INA, and, in accordance with the Constitution’s Supremacy Clause, the INA supplanted the incompatible state law.
Federal District Judge Susan Bolton ruled in favor of the federal government and issued a preliminary injunction to prevent Arizona from implementing the controversial parts of the law until the constitutional issues were resolved. The Ninth Circuit Court of Appeals affirmed, noting that Arizona has infringed upon the federal government’s authority over immigration.
The appellate court emphasized that the Arizona conflicted with federal law in numerous ways. Arizona, for example, effectively criminalized immigration offenses which Congress had decided to penalize merely in a civil manner. The court also noted that that while federal immigration law allowed state cooperation when overseen by federal government agencies, it did not allow states to enact their own “mandatory and systematic schemes” to regulate immigration independent of these federal agencies.
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.
As the Ninth Circuit affirmed the injunction against S.B. 1070, Governor Brewer appealed to the Supreme Court. After enlisting veteran Supreme Court litigator Paul Clement as Arizona’s lawyer, Brewer’s legal team argues that Arizona does not conflict with federal law, but actually complements its. Notwithstanding this legal position, Governor Brewer at the same time maintains that Arizona can craft an immigration policy distinct from that of the federal government. In a recent interview with the Washington Times, for example, she noted that “If [federal officials] are not going to enforce the immigration laws, well then the states are going to have to step up and do it.”
Although it is impossible to know how the Supreme Court will rule in this contentious case, it is most likely that the Court will strike down S.B. 1070 by a narrow margin. Last year in Whiting, the Court narrowly upheld another law out of Arizona which denied state business licenses to companies that employed unauthorized immigrants. In a 5-3 vote long ideological lines, the Court held that federal immigration law allowed states more authority to cooperate on immigration matters when related to employment.
S.B. 1070, however, is significantly more severe the law upheld in Whiting. Whereas the law in Whiting merely involved the denial of business licenses (in line with federal immigration standards), S.B. 1070 curtails civil liberties of the general public during traffic stops and contradicts congressional policy decisions embodied in the INA. Particularly in field of immigration, the Court recently has more carefully scrutinized the curtailment of individual legal rights, while giving legislatures more leeway in the area when related to employment regulation.
Because S.B. 1070 is a more restrictive law, it is likely that at least one or two members of the Court's conservative wing will join the Court’s liberal colleagues to strike down Arizona’s immigration law. Of the conservatives, Justice Kennedy is most likely to vote to strike down the law. When the decision is issued, presumably in June, it will define the scope to which states can regulate immigration. If the federal government wins, states will have little to no authority to regulate immigration. If Arizona comes out on top, however, much will depend on the language of the Court’s opinion. Even if the Arizona immigration law survives, more stringent copycat laws – such as the one in Alabama – may still see legal hurdles in the future.