Photo by Jonathan Gibby/Getty Images
Protesters in Phoenix on Wednesday, April 25, 2012, the day the U.S. Supreme Court heard oral arguments on Arizona's SB 1070 anti-illegal immigration law.
On Wednesday, the U.S. Supreme Court heard oral arguments in Arizona v. United States, Arizona’s challenge to the federal government’s assertion that the state anti-illegal immigration law SB 1070 conflicts with federal law. The justices are weighing four provisions of the law, blocked by a federal judge just before it took effect in July 2010.
These are Section 2(B), which requires police to try to determine the status of people they encounter if there is “reasonable suspicion” that they are in the country illegally and requires them to check the status of those they arrest; Section 3, which makes it a state crime to be without valid immigration papers; Section 5(C), which makes it a state crime to work or seek employment in Arizona without valid work authorization; and Section 6, which empowers local police to arrest someone without a warrant if there is “probable cause” that the person committed a deportable offense.
A decision isn’t expected until June, but the questions from the justices this week signaled that Arizona stands a chance of prevailing, at least on the controversial provision involving “reasonable suspicion,” which critics fear could lead to racial profiling. While not a factor in Supreme Court case, the profiling issue has been at the heart of other legal challenges.
What to make of what transpired in the Supreme Court, and where might the court land?
Two constitutional law experts, John C. Eastman and Elizabeth B. Wydra, provide differing prognoses in this Q&A debate. Eastman, a professor of law at Chapman University in Orange, Calif., has served as counsel to legislators drafting anti-illegal immigration measures and has worked closely on some proposals with Kris Kobach, the legal author of SB 1070 who is now Kansas Secretary of State. Wydra is chief counsel for the Constitutional Accountability Center, a progressive legal think tank in Washington, D.C. that filed a friend-of-the-court brief supporting the federal government’s preemption argument.
Wydra was in the courthouse for the hearing this week; Eastman followed it remotely and has studied the transcripts. Here is what they think.
M-A: What do you make of what happened in Wednesday’s hearing?
Eastman: I think the Solicitor General has been given an impossible task two cases in a row now. One of the things that is true about the Supreme Court is that if you go up there and your arguments have no merit, the justices figure that out pretty quickly. Even Justice Sotomayor said General Verrilli’s argument wasn’t getting any takers. That is pretty significant.
I think the key provisions, the most controversial, are going to be upheld and they may be upheld by a significant majority. I think the justices rightly recognized that Arizona was not intruding on federal authority here. And the big point on that issue came when the Solicitor General had to concede that law enforcement officers in Arizona could ask about people’s legal immigration status even before this law passed. Once you concede that, the fight becomes simply whether the state can direct its officers how to exercise their discretion. And that is clearly permissible.
The provision of the Arizona law imposing sanctions on employees for working while illegally present looks like it might fall. The issue there is a bit complicated. Under the Supreme Court’s existing preemption doctrine, if the federal statute says that states can’t impose any criminal sanctions on the employees, then state laws that tried to do that would be expressly preempted. Here, the federal law has penalties against the employer, but does not provide for penalties against the employee.
So the issue is whether Congress intended to prevent states from weighing in with penalties against the employees, even if it did not expressly say so. Because sanctions on employers and sanctions on employees are pretty closely related, and Congress deliberately provided only the former, it looks like the court is leaning toward holding that Congress implicitly preempted state laws that imposed sanctions on the employees.
Wydra: It did seem like several of the justices, and perhaps a a majority of the justices, did not see a preemption problem. That is, they did not see a conflict with SB 1070’s “show us your papers” provision. But there also seemed to be a majority of the justices who were very concerned about the other provisions of the law, which include state criminal sanctions for people who don’t carry their immigration documents and unauthorized immigrants who seek work in Arizona.
The questioning really did focus on the provision that the public is certainly most concerned about, which is the provision that authorizes law enforcement officers to ask a person for their immigration papers if there is “reasonable suspicion” that the person is in the country illegally.
The Solicitor General really had to work hard to get the court to focus on other arguments, over the other provisions. I think that is in part because the administration’s arguments that the other provisions of the law are preempted by federal immigration law are really quite strong. It seemed even Chief Justice Roberts, who seemed to be leaning in the direction of Arizona on that papers-please provision, wasn’t buying Arizona’s arguments on these state criminal penalties in the other provisions of the law that have been enjoined.
M-A: What’s the general prognosis, as you see it?
Eastman: I think there will be a split. The most significant provisions, the ones that generated all the controversy, those look to me like they will be upheld. I think that is significant.
