On Wednesday, the justices will hear arguments on the controversial legislation. Whatever they decide will have implications for decades to come.
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.
THE FOUR SECTIONS (ARIZONA'S VERSION)
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.
THE FOUR SECTIONS (UNITED STATES' VERSION)
The federal government says the state may not tread into this area of traditional federal control. Arizona's new law does more than its proponents are now suggesting it does, the feds say, because it requires the national government to respond to state action it didn't want undertaken in the first place. The preemption arguments in this case are thickets so I'll again gleefully recommend that you take the tour of the law with Scotusblog's Lyle Denniston, who has authored an excellent preview here. From their response brief, here's how the federal lawyers see the four sections:
Section 2 : Before SB 1070 Arizona officers routinely worked in partnership with federal officers to cooperatively enforce the immigration laws. Section 2 changed Arizona's policy from one of cooperation to one of confrontation by insisting indiscriminately on enforcement in all cases, and requiring state and local officers (whenever practicable) to verify the immigration status of everyone they stop or arrest if there is reasonable suspicion that the person is unlawfully present.
Section 6 : Likewise is not "cooperation" because it empowers state and local officers to pursue and detain a person based on the officers' perception that the person is removable, and without regard for whether proceedings to remove that person would be consist with the federal government's priorities.
Section 3 : Although Petitioners acknowledge that Arizona has not sought to set up its own registration system, it has set up its own registration penalties and its own scheme of registration enforcement (emphasis in original).
Section 5 : [Under federal law], employees are subject to criminal punishment only for deceptive practices seeking employment, and they may face civil consequences for working without authorization. But Section 5 seeks to criminalize working or even seeking work, without authorization, a penalty rejected by Congress...
No matter what the lawyers and justices say Wednesday in court, we'll know the truth no earlier than late June. But I'll be back later this week with a postmortem. The dynamic on the bench will be different, no doubt, without Justice Kagan. And as usual most eyes and ears will be on Justice Anthony Kennedy. Just last May, in Chamber of Commerce v. Whiting, Justice Kennedy sided with Arizona and his conservative colleagues in a case about a state law that authorized the revocation of the licenses of state employers who knowingly or intentionally employ "unauthorized aliens."
In Whiting, it is worth noting, both the federal trial judge in Arizona, and later the 9th Circuit, agreed that the state licensing law was constitutional and consistent with the Court's so-called "express preemption" doctrine. In the current Arizona case, remember, every single federal judge who has looked at the statute so far has agreed that at least some parts of it are unconstitutional. You can bet that's a topic that will come up Wednesday when Bob and Bing, Donald and Paul, are back in front of the legal and political klieg lights.
The commentary leading up to the big argument has been less frequent than we saw at last month's health-care showdown -- but at times no less curious. A law professor, for example, wrote in The New York Times that it would be better in the "long run" for "immigrant interests" if the Supreme Court lets the Arizona measure stand so that the statute could "wither away" on its own, a political victim of the bad policy it represents. Tell that to the poor American who, before the "withering" is completed, is stopped on an Arizona street for looking "illegal."
And tell that to all the other people, in states other than Arizona, who know that the Supreme Court's ruling will a direct, profound, and perhaps immediate impact upon their own lives. The justices have a convenient opportunity here, if not a constitutional obligation, to declare that it would be a bad idea to have 50 different immigration policies, each ginned up by state legislators all focusing upon their hometown problems. Both the precedent and the symbolism of this ruling could impact federal and state immigration policy for decades to come.