Will the Supreme Court Uphold Arizona's Immigration Law?

On Wednesday, the justices will hear arguments on the controversial legislation. Whatever they decide will have implications for decades to come.

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A demonstrator yells at police during a protest against Arizona's controversial Senate Bill 1070 immigration law in 2010. / Reuters

The United States Supreme Court Wednesday ends the argument phase of this memorable term with the Arizona immigration case. It's a legal dispute that is as complicated as are the political, social, and economic ramifications of the Grand Canyon State's legislative effort to drive out its illegal residents. The arguments will be made in turn by U.S. Solicitor General Donald Verrilli and Paul Clement, who will be reprising the Hope-and-Crosby roles they made famous just one month ago, in the very same venue before the very same audience, during the three-day-long arguments over the Patient Protection and Affordable Care Act.

As a technical matter, Arizona v. United States is about the doctrine of implied federal preemption: whether a state may develop its own laws and policies if they are "substantively compatible" with federal immigration law and policy. As a practical matter, however, Arizona's SB 1070 has always been a form of political extortion. If you won't deal with illegal immigrants the way we want you to, Arizona said to the federal government in 2010, then we'll wake you up and shake you up by taking matters into our own hands. Oh, and while we are at it, we're going to sue you for damages for allowing our state to be "invaded."

On the immigration front, a great deal has changed since July 2010. While several other state legislatures emulated or surpassed Arizona's immigration push, the statistics tell us that the problem may be waning. Immigration into the United States from Mexico is down sharply, a shift this recent Pew Research Center study suggests may have begun as early as 2005. Meanwhile, businesses in those eager states quickly learned what "attrition through enforcement" really means -- many workers simply left, causing economic turmoil. Hey, Alabama, your new immigration law may cost your state $11 billion. Was it really worth it?

Verrilli and Clement -- quick, Hollywood, please sign them up for Road to Maricopa! -- will be fighting about all of this in front of just eight justices. Justice Elena Kagan has recused herself from this case, presumably because of her work in the solicitor general's office before she ascended to the Court. This means that one or more of the issues in the case may generate a 4-4 tie, which means that the lower court decision stands, which would mean, in this case, that the most controversial parts of the statute would remain as they are today: unenforced and unenforceable.


Here are the provisions at the core of the current fight. Each has been held unconstitutional, first by U.S District Judge Susan Bolton, the federal jurist who initially evaluated the statute in 2010, and then by a majority panel of the 9th U.S. Circuit Court of Appeals last year. This is how Arizona, in its opening brief in this case, describes the statutory sections in play:

Section 2(B) provides that "[f]or any lawful stop, detention or arrest made" by Arizona law enforcement, "where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person."

Section 6 ... adds to Arizona peace officers' warrantless arrest authority by authorizing such arrests when "the officer has probable cause to believe ... [t]he person to be arrested has committed any public offense that makes the person removable from the United States."

Section 3 ... incorporates and enforces the requirements of the federal alien registration laws. It provides that "[i]n addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 [U.S.C. §§] 1304(e) or 1306(a)."

Section 5(C) makes it a misdemeanor for "a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state.


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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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