The "show me your papers" provision of Arizona's tough immigration enforcement law is most familiar to the public. It is also likely to withstand judicial scrutiny.
But it is only one of four provisions at issue in the most watched Supreme Court immigration case in at least 10 years. If the court strikes down any of the other parts of Arizona's law, like its ID requirements or warrantless arrests, it will be a clear signal to states frustrated by immigration problems that there are limits to their authority.
In Wednesday's oral argument, Supreme Court justices showed little sympathy for the federal government's complaint that state police officers would violate federal immigration jurisdiction if they check the status of someone they pull over. That argument is recognized by legal analysts to be the weakest in the government's case against the Arizona statute.
Justice Antonin Scalia all but laughed the federal government's lawyer out of the courtroom when he suggested that Arizona police officers would somehow deter the federal government from enforcing immigration by calling federal officials to ask about a person they stop. "Arizona isn't trying to kick out anybody that the federal government hasn't already said doesn't belong here," he said. "The Constitution recognizes that there is such a thing as state borders and a state can police their borders."
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Scalia's comments are no surprise; he is an unapologetic conservative who vigorously defends states' rights. But his impatience with the government's complaint that Arizona is interfering with its enforcement scheme illustrates the difficulty that other justices will have in siding with the feds.
The case is being watched by dozens of other states, as well as immigration and civil rights groups, because it will define how far state and local lawmakers can go in dealing with illegal immigrants. It will be pivotal for states like Alabama or Utah, which have passed similar immigration enforcement laws that are facing their own legal challenges.
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But the case also will set the tone for a broader conversation about immigration in a year when Hispanics could make the difference in at least some elections. If the justices uphold Arizona's law, it would trigger a chorus of protests from Hispanics and others who fear racial profiling. If the court strikes the law down, it will feed into states' anger that the United States' isn't doing enough to fix its immigration system.
Chief Justice John Roberts noted that the Arizona law only allows legal status checks if the police officer has pulled over a person for some other reason. The Arizona officer would simply be alerting the federal government to an illegal alien's presence. "It seems to me the federal government just doesn't want to know who's here or not," Roberts said, echoing complaints from Arizona and other critics that the federal government has failed to enforce immigration law.
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Roberts, also a conservative, pointed out that the high court already has given states some authority to regulate immigration when it upheld Arizona's law requiring employers to verify the legal status of new hires. That 2011 decision will loom large over the justices as they weigh this case.
Paul Clement, who represented Arizona, played down the practical impact of the "show me your papers" provision, saying it would merely give police officers the ability to make status checks if they work in cities (like Phoenix) that don't allow them. Police officers already have ad hoc authority to check on legal status during the course of their jobs. Similarly, Clement said, the state law's provision allowing warrantless arrests would simply give state officers the ability to detain a person if they learn he or she is deportable but cannot be arrested for another reason. Clement, a former solicitor general, is an attorney with Bancroft PLLC.
Even the more liberal Justice Sonia Sotomayor, who offered the most sympathy for the government's position, pointed out to Justice Department Solicitor General Donald Verrilli that his argument "isn't selling very well" — namely that a regularized system of status checks is somehow different from the current (and legal) ad hoc one.
However, Justice Anthony Kennedy pursued a line of questioning that could potentially lead the justices to invalidate the status check provision. He asked whether a person would be detained longer than they otherwise would have been because of the immigration status check. Clement was unable to assure Kennedy that the detention time would not be lengthened.
The justices were less harsh about the government's objections to the other provisions of the Arizona law, indicating the court could reach different conclusions about different parts of the law. The justices had practical questions for the petitioners about how people would be treated. They wanted to know, for example, what would happen to a person stopped in Arizona who is technically undocumented but awaiting federal registration (i.e., for asylum). That situation could come up under the state law's provision allowing warrantless arrests for people that state police believe are deportable, or it could come into play under the state law's provision requiring people to carry documents showing their legal status. Either way, the answer is confusing.
Clement said that such a person would not be detainable because they are not willfully violating the law by having no papers. Verrilli disagreed. Such a person is in technical violation of the law, he said, and the Arizona statute makes it a crime to not have legal documents. Scalia then suggested, almost half-heartedly, that the confusing federal statute could be amended to clarify that question.
Arizona's provision making it a crime for an illegal alien to seek employment was almost a side-note to the discussion, although it is more likely to be struck down by the justices than the other parts of the law. Verrilli was permitted to outline his argument against the provision without interruption, noting that Congress already had established the exclusive framework for employing illegal immigrants in its 1986 immigration law. That law makes it illegal for employers to hire undocumented workers, but it is silent on the criminality of the employees themselves.
Clement argued that the silence in the 1986 law gives Arizona the go-ahead to address unauthorized workers in its own law. Sotomayor disagreed bitterly with this idea. "For those of us for whom legislative history has some importance, there is quite a bit of history that [employee sanctions] were discussed and rejected," she said.