Arizona immigration law: Supreme Court again examines
The Supreme Court will conclude one of its most significant and controversial
terms in decades by taking on one more issue that has divided the nation:
Arizonafs crackdown on illegal immigrants.
The courtfs final oral argument on Wednesday — Arizona v. United
States — provides yet another chance for the justices to confront
fundamental questions about the power of the federal government. And the rulings
the court will issue between now and the end of June could dramatically alter
the nationfs election-year landscape.
The court has considered President Obamafs health-care law, has taken its first
look at the political redistricting battles being fought across the nation and
will decide whether federal regulators still hold the authority to police the
The Obama administration has moved aggressively against Arizonafs SB 1070,
which directs law enforcement to play a much more active role in identifying
illegal immigrants and makes it a crime for them to seek work. The
administration has persuaded courts to put aside key parts of the
And, as with last monthfs hearings on the health-care law, in the
Arizona case the government is asking the court to recognize that the
Constitution gives the federal government vast powers to confront national
problems, such as illegal immigration.
gAs the framers understood, it is the national government that has the
ultimate responsibility to regulate the treatment of aliens while on American
soil, because it is the nation as a whole — not any single state — that must
respond to the international consequences of such treatment,h Solicitor General
Donald B. Verrilli Jr. told the court in the governmentfs brief.
Immigration is one of the nationfs thorniest political issues. Obama and his
administration have been accused of not properly securing the nationfs borders
and criticized for not delivering comprehensive immigration reform. Presumptive
Republican presidential nominee Mitt Romneyfs tough stance against illegal immigration has
angered some interest groups and is said to have cost him among increasingly
influential Latino voters.
And even as the pace of illegal immigration has slowed, it has left a changed
picture of undocumented immigrants in the United States. According to the
liberal Center for American Progress, 63 percent of illegal immigrants have
been in the country for more than 10 years and more than 16.6 million
people in the United States have at least one undocumented family member.
Tom Saenz, president and general counsel of the Mexican American Legal
Defense and Education Fund, said that while the legal issues in Arizona v. United States grelate to the structure of
government, it is still very much a civil rights case.h
The decision will have implications well beyond Arizona. Several states have
copied — and toughened — Arizonafs law, and more are considering such steps.
gThis debate is not just about SB 1070,h Arizona Gov. Jan Brewer (R) said in a statement when the
state filed its brief in the case. gRather, it is for the constitutional
principle that every state has a duty and obligation to protect its people,
especially when the federal government has failed in upholding its core
gSB 1070 is Arizonafs way of saying eenough!f h
The Obama administration opposed Arizonafs efforts from the start, as it has
similar laws passed in Alabama, Georgia, South Carolina, Utah and elsewhere.
gArizona has adopted its own immigration policy, which focuses solely on
maximum enforcement and pays no heed to the multifaceted judgmentsh that
Congress intends for the executive branch to make, Verrilli wrote in the governmentfs brief. gFor each State, and each locality, to set
its own immigration policy in that fashion would wholly subvert Congressfs goal:
a single, national approach.h
The Obama administration persuaded a federal judge and then the U.S. Court of
Appeals for the 9th Circuit to keep four sections of the law from taking effect,
and they will be at the heart of the Supreme Courtfs review. Those sections:
Require state and local law enforcement to verify the citizenship status of
anyone stopped, detained or arrested when there is greasonable suspicionh that
the person is in the United States unlawfully.
Authorize law enforcement officials to make and arrest without a warrant
when an officer has gprobable cause to believe . . . [t]he person
to be arrested has committed any public offense that makes the person removable
from the United States.h
Make it a state crime to be in the United States unlawfully and require
non-citizens to carry documents to prove they are legally in the country.
Make it a state crime for a person who is not lawfully in the country to
work or seek work. Federal law puts the burden on employers to verify the
legality of those seeking work.
The case before the court offers a rematch of the lawyers who last month
argued the constitutionality of the Patient Protection and Affordable Care Act:
Verrilli for the government and Paul D. Clement, president George W. Bushfs
solicitor general, representing Arizona.
Clementfs brief opens with page after page
of costs and crimes that have accompanied a wave of illegal immigration across
Arizonafs borders: Schools, hospitals and jails are overtaxed. Home invasions
related to drug smuggling and human trafficking have soared. gIncredibly,h Clement writes, the federal government has even posted
signs warning travelers: gDanger — Public Warning — Travel Not Recommended.h
gActive Drug and Human Smuggling Area.h gVisitors May Encounter Armed Criminals
and Smuggling Vehicles Traveling at High Rates of Speed.h
Clement says SB 1070 is not imposing new immigration standards but merely
directing its own officials to make sure federal laws are respected.
gSuch cooperative law enforcement is the norm, not something that requires
affirmative congressional authorization,h Clement writes.
Verrilli responds that the Arizona lawfs gvery design discards cooperation
and embraces confrontation.h
He describes a complex federal policy of detaining and deporting illegal
immigrants prioritized on criminal activity and other factors. The Department of
Homeland Security receives funding to remove annually about 400,000 of the
approximately 11 million people in the country illegally, he says, and it
is up to federal officials — not Arizonafs — to decide who they should be.
And he says Arizonafs decision to impose criminal sanctions on those who seek
work is an idea Congress debated and rejected in passing immigration legislation
The Supreme Court in its previous term signaled that immigration enforcement
is not solely the province of the federal government. In a 5 to 3 vote, it agreed that Arizona could revoke the business licenses
of companies that knowingly employ undocumented workers.
The court in that case said Arizona was in line with an exception in the 1986
law that allows states leeway in the licensing of businesses, Chief Justice John
G. Roberts Jr. wrote.
The same eight justices will hear Wednesdayfs Arizona case — Justice Elena
Kagan recused herself in both, presumably because of her work on the issue in
her previous job as Obamafs solicitor general.
If they split evenly, the 9th Circuitfs injunction of those aspects of the
Arizona law would stand and the larger issue of federal authority would need to
wait for a challenge to one of the other statesf laws.
As with health care, the case has attracted a raft of amicus briefs. Sixteen
states, including Virginia, are supporting Arizona; 11, including Maryland, say
the federal government must play the dominant role in immigration.
The stance of each state follows less the number of immigrants within its
borders and more the political party of its leadership.
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