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The odds are in Arizona’s favor, based on the precedent of a decision handed down by the Supreme Court earlier this year involving another Arizona immigration law. Then too Justice Kagan recused herself. In the case of Chamber of Commerce of the United States of America v. Whiting, the Court upheld by a 5-3 vote the constitutionality of an Arizona licensing law, the Legal Arizona Workers Act of 2007, which suspends or revokes the licenses of businesses that knowingly or intentionally hire illegal immigrants. Justice Kennedy voted with the majority in that case.
Chief Justice John Roberts ‘ opinion for the majority blew a hole in one of the principal arguments that the Obama Justice Department has also used to challenge SB 1070 – the pre-emption of state authority in the area of immigration by the federal immigration laws. He relied on what he called “common sense” in interpreting the scope of the preemption carve-out for “licensing” laws. He also rejected the argument that Congress intended the federal immigration system to be so exclusive that the states have no role at all. He emphasized that Arizona’s law closely tracks the federal immigration law’s provisions in all material respects. For example, Chief Justice Roberts observed that Arizona’s law adopts the federal definition of who qualifies as an “unauthorized alien.” And it requires Arizona employers to use the federal government’s own system for checking employee status.
Rather than confine himself to the specific facts of the employer licensing case and reach his decision based solely on the unique preemption carve-out language in the federal immigration statute applicable to state licensing laws, Chief Justice Roberts used the opportunity to signal that core federalism principles were involved in the case and that the state had a legitimate interest in protecting the welfare of its citizens against the negative consequences of inadequate enforcement of the federal immigration laws. He rejected the argument that Arizona’s licensing law was preempted because it somehow upset the balance that Congress sought to strike, noting that Arizona’s licensing law simply sought to help enforce the federal ban on hiring illegal aliens. He also dismissed hypothetical arguments that the licensing law would increase the possibility of employer discrimination.
SB 1070 complements federal law enforcement. It does not purport to displace federal immigration law, create new definitions of illegal aliens or regulate immigration. SB 1070 is also facially non-discriminatory – there is nothing in the statute that pre-ordains racial profiling or other forms of discrimination.
This does not necessarily mean that the Supreme Court will treat all portions of SB 1070 the same way as it did the Legal Arizona Workers Act or that it will uphold SB 1070 in its entirety. The warrantless arrest provision, for example, is quite possibly the most vulnerable to constitutional challenge.
However, unless Justice Kennedy does a major flip-flop, which is always possible, the core of SB 1070 – particularly, the detention and immigration status inquiry provision – may well be upheld as a constitutionally valid exercise of state power to protect the welfare of its citizens by complementing federal enforcement of the nation’s immigration laws.
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