The Fate of Arizona's Immigration Law

Why the odds in the Supreme Court are in the state's favor.

The U.S. Supreme Court granted a petition for a writ of certiorari to hear an appeal in the case of Arizona v. United States, in which key provisions of Arizona's controversial immigration law, SB 1070, were struck down as unconstitutional by U.S. District Judge Susan Bolton. The 9th Circuit of Appeals upheld Bolton's ruling last April.

Two of the blocked sections would make it a crime under state law for an undocumented immigrant to be present in the state, fail to register with the federal government and attempt to obtain work or to hold a job without governmental authorization. Another section mandates that law enforcement personnel ask about the immigration status of those they detain (for infractions unrelated to immigration) if there is reason to suspect the detainee may not be in the country legally. The fourth challenged provision allows for the warrantless arrests of individuals whom police officers have probable cause to believe have committed deportable offenses.

The 9th Circuit upheld the lower court's decision to strike down these provisions on the grounds that they unconstitutionally invaded the U.S. government's comprehensive immigration regulation authority under federal law.

Arizona has argued that SB 1070 aids the federal government in the enforcement of its immigration laws and directs "state law-enforcement officers to cooperate and communicate with federal officials regarding the enforcement of federal immigration law." As a border state, Arizona has a particular interest in helping the federal government to enforce the law. According to Arizona Governor Jan Brewer, 400,000 people live in Arizona illegally, and make up about 7 percent of the state's workforce. She claims the number of illegal immigrants has increased by about 10,000 per year from 2000 to 2010, and "the federal efforts remain demonstrably inadequate."

Nevertheless, the 9th Circuit appeals court rejected Arizona's substantial state interest in helping to ensure effective enforcement of the federal immigration laws. It dismissed the idea that state efforts to facilitate federal enforcement or impose parallel prohibitions on conduct prohibited by federal immigration laws are an acceptable means to vindicate a state's interest in protecting its citizens if the federal government does not want the state's assistance.

Unlike the Supreme Court's hearing of a constitutional challenge to Obamacare, in which it appears that Justice Elena Kagan does not intend to recuse herself even though she served as the Solicitor General when her office was considering litigation strategies to defend Obamacare in court, Justice Kagan is recusing herself in this case since the Obama administration's decision to sue Arizona over SB 1070 occurred during her watch as Solicitor General. Exactly how she has distinguished the two situations remains unclear.

With Justice Kagan removing herself from the Arizona case, there is a possibility of a deadlock amongst the remaining eight Supreme Court justices, which would mean that the 9th Circuit decision striking down the key provisions of SB 1070 would stand as the final law on the matter. Thus, it will in all likelihood come down to what Justice Anthony Kennedy, frequently the swing vote on the Supreme Court, decides to do.

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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