At issue is the right of states to pass concurrent laws in the immigration field. The Arizona law purports to merely enforce federal law — raising questions of how such a law could conflict with federal law. There are four specific provisions at issue in the law, S.B. 1070 or the “Support Our Law Enforcement and Safe Neighborhoods Act.”
1. Section 2(B) requires that state police check the legal status of persons arrested before they may be released. This provision also allows police to stop and arrest anyone suspected of being an undocumented immigrant.
2. Section 3 makes it a state crime to be in Arizona without legal immigration papers.
3. Section 5(C) bars all undocumented immigrants from applying for a job or working in the state.
4. Section 6 allows for warrantless arrests of anyone believed to have committed a crime that would lead to deportation, even if the crime had been committed in another state.
Five other states have passed new laws along the same lines as Arizona, including Alabama, Georgia, Indiana, South Carolina, and Utah.
With Kagan recused, a four-to-four tie would lead to the Ninth Circuit’s ruling against the law being upheld. That is why, again, all eyes were on Justice Anthony Kennedy. Yet, Kennedy joined last May in an opinion by Chief Justice John G. Roberts, Jr. in U.S. Chamber of Commerce v. Whiting (joined by Justices Alito and Scalia) that “Implied preemption analysis does not justify a ‘freewheeling judicial inquiry into whether a state statute is in tension with federal objectives’ . . . such an endeavor would undercut the principle that it is Congress rather than the courts that preempts state law . . . Our precedents ‘establish that a high threshold must be met if a state law is to be pre-empted for conflicting with the purposes of a federal Act.’” With Justice Clarence Thomas long opposed to implied preemption arguments, that would make five votes in this case if the matter is treated in the same fashion.
Early reports fro Scotus and other blogs is that most of the time was spent on the provisions permitting the state to inquire about immigration status. That part of the act is viewed as the least vulnerable of the provisions and is expected to be upheld. Remember all the Administration needs is one conservative vote to uphold the Ninth Circuit on striking down the state crime provision on immigration status since Kagan has recused herself.
Scalia reportedly advanced the view that states have the broadest possible authority to close their borders to illegals. What is clear is that the Administration is not likely to sweep the case based on a rejection of concurrent jurisdiction. However, it is not clear how many of the sections would survive.
It was another bad day for Solicitor General Donald B. Verrilli Jr. who was embarrassed by a less than stellar performance in the health care argument — and Justice Ginsburg stepping in to tell him what he should be arguing. In this argument, it was Justice Sotomayor who observed “I’m terribly confused by your answer” and then added “You can see it’s not selling very well.”