UPDATE: 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.
As the end of June approaches in Washington, all eyes are on the Supreme Court. A number of watershed opinions are expected in the next two weeks, including a ruling on the legality of Arizona’s immigration law, SB 1070.
Perhaps arriving as early as Monday morning, the Court’s opinion, together with President Obama’s “DREAM Order” last Friday, could reshape immigration policymaking across the country and help frame one of the biggest issues in the 2012 presidential race.
Considering that the Supreme Court is famously successful in preventing leaks of its opinions and is often unpredictable in its rulings in tough cases, it is difficult to forecast the Court’s decision. Even so, April’s oral argument in the case provided some insight into the Justices’ varying positions over the legality of state regulation of immigration.
Following the oral arguments, it appears likely that the Court will uphold SB 1070, at least in part.
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.
During oral arguments, Justices Scalia and Chief Justice Roberts did not mask their support for Arizona’s position. Additionally, Justice Thomas is almost certain to side with Arizona – he rejects implied preemption, the federalism-based legal theory at the heart of the United States’ lawsuit against SB 1070. Although the three liberal Justices seemed more wary of the law (discounting Kagan, who recused herself from the case), they did not voice the staunch opposition to the law that many immigration rights’ advocates had hoped for. Characteristically, Justice Kennedy’s vote could go either way – on the one hand he voiced concerns over due process protections of immigrants in Arizona while also expressing sympathy with some of Arizona’s policy goals behind the legislation.
One of the most likely outcomes is that the court will uphold some provisions of SB 1070, while striking down other sections of the law. Post-oral argument, it is probable that the Court will uphold the so-called “show me your papers” provision. However, it also seems likely that the court will still strike down the parts of SB 1070 that make it a state crime to violate certain federal civil immigration requirements. The Court’s ruling on the criminalization provision will probably be a narrowly-divided vote, perhaps 5 to 3.
The broader import of the Arizona immigration ruling, however, will be the scope to which the Supreme Court outlines if, and how, states may regulate immigration in the future. Prior to the ruling in this case, the federal government has retained the exclusive right to legislate immigration, in line with the Constitution’s Naturalization Clause. Now, however, it appears that the Court might demarcate new boundaries under which individual states may permissibly devise their own immigration policies.
If this comes to pass, the Court’s ruling will also accentuate the immigration debate in the 2012 election season. The decision over SB 1070 will come at the heels of the Executive Branch’s “DREAM Order,” issued this past Friday. The Order outlines how the Department of Homeland Security plans to implement prosecutorial discretion in order to halt, at least temporarily, the deportation of qualifying young people who arrived in the U.S. as children, have exhibited a pattern of good behavior in the country, and have demonstrated their commitment to their studies or served in the Armed Forces.
Highly popular with the all-important Latino electorate, the presidentially-approved policy is expected to garner votes for President Obama. While former Governor and GOP presidential nominee Mitt Romney has not yet committed to a firm stance regarding the DREAM Order, ultimately Romney’s posture on the issue may well determine his success with the voting bloc, which is a significant one in many swing states.
It is certainly possible that President Obama timed the Order so as to preempt a Court ruling that is, at least partially, in favor of Arizona.
Even if the Court upholds portions of SB 1070, the issue of state regulation of immigration will remain hotly contested. The federal government’s suit against SB 1070 relied exclusively on grounds of federalism and explicitly avoided a legal complaint on the issue of racial profiling. Because many civil rights advocates view racial profiling as the most serious problem of SB 1070, it is likely that more lawsuits will follow the Court’s decision. Moreover, some Democrats have promised an attempt to overturn the Supreme Court’s ruling on SB 1070, a legally permissible option since the Court is expected to rule on non-constitutional grounds.
However the Supreme Court may rule, its decision will merely bring a new phase to the immigration debate.