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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.