The Supreme Court is hearing oral arguments today in the immigration case of Arizona v. United States. I published a column in USA Today yesterday on the case. I discussed the case yesterday on NPR’s Diane Rehm Show and will be updating this blog with developments and I will be on NPR’s Here and Now to discuss the case at noon.
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.”
PS, in re my last comment: perhaps in a bit of irony, Dr. Norris stated that enforcement in the rest of Az had funneled the traffic onto the Reservation, which (irony here) is Az’s complaint on a national scale.
mespo727272,
I don’t know if the law will yield a net gain or loss; this is true of many laws. My comments are intended to provide background and show that there may be reasons for the law other than racism. (And as an aside, not all Hispanics oppose the law.)
To answer your question of why Az decided that this group deserves more scrutiny, I think the answer is that there is a perception that this group (illegal immigrants) is causing a disproportionate share of problems in Az.
From the altoarizona blog (2010 and updated in 2011)
“The O’odham nation spends more than $3 million a year dealing with the flood of illegal migrants coming through its territory, including expenses for border security, death investigations, drug trafficking investigations, trash removal and other services. The rate of migration has at times reached 1,500 people a day and now is around 700 – 800 people a day, Norris said.”
Norris is Tohono O’odham Chairman Dr. Ned Norris Jr.
(altoarizona is opposed to SB 1070 as is the Tohono O’odham Nation; believe it or not, reasonable minds can differ)
The bottom line for many is that the Feds have failed in their duty on this issue, which helps answer your response to J. Scalia.
“What’s wrong about the states enforcing federal law?” Scalia said during his aggressive questioning of U.S. Solicitor General Donald Verrilli.
****************
The same thing that’s wrong with them fighting wars or negotiating treaties. They’re not equipped to do it very well and it’s traditionally a national matter since it bears directly on foreign policy.
“WASHINGTON — A majority of the Supreme Court on Wednesday morning appeared sympathetic to Arizona’s argument that the most controversial elements of its immigration law offer a legitimate helping hand to federal immigration policy, rather than act as unconstitutional agents of chaos.”
http://www.huffingtonpost.com/2012/04/25/sb-1070-supreme-court-arizona-immigration-law_n_1451622.html
mahtso:
Problems exist but you ignore two salient points:
1. Undocumented aliens pay taxes for services they cannot legally obtain; and
2. All population groups contribute to the crime problem.
It’s a question of net good and focus. In Arizona, the legislature has decided this group is worthy of stricter scrutiny. Ok, he question ibecomes “why’? No one favors more crime or illegality, but is this a real problem or a political football passed around to garner political points with the states aging, white, middle class citizens? I wonder what will happen if they win and the tax base shrinks in Arizona thus causing a rise in the overall rate of taxation? Will the retirees still be up in arms over immigration or higher taxes?
rafflaw has convinced me, it’s all racism. For the rest of you, simple Google searches will provide information showing that the problems exist.
Why not during the Bush administration? I don’t know, but I am reminded of the joke about two economists who see a $100 bill on the ground. I do know that during that time at least one other measure intended cure the problem was passed in Az. Commonly called the employer sanctions law, the USSC upheld it in 2011 (if memory serves).
To me it is mind boggling that people are not upset about our public lands being unsafe (whether because of human or drug smugglers), but I guess ideology trumps a multitude of sins.
Scalia Likens Undocumented Immigrants To ‘Bank Robbers’
In his fervent defense Wednesday of Arizona’s right to crack down on illegal immigration, Justice Antonin Scalia likened immigration enforcement to crackdowns on bank robbers.
“What’s wrong about the states enforcing federal law?” Scalia said during his aggressive questioning of U.S. Solicitor General Donald Verrilli. “There is a federal law against robbing federal banks. Can it be made a state crime to rob those banks? I think it is.”
The alleged “damage” to Arizona is nonsense. Why wasn’t this bill pushed through during the Bush Administration when the illegal immigration flow was greater than it is now? It is pure racial politics as evidenced by the people who wrote the bill. Show us some evidence of this alleged damage to Arizona.
The District Court cited 8 U.S.C. §1373(c) and concluded that because subsection (c) requires the INS to respond to all requests for certain information, requiring Arizona law enforcement agencies to make such requests would “divert resources from the federal government’s other responsibilities and priorities.” Id. While the District Court cites subsection (c), it apparently didn’t read subsections (a) & (b) of 8 U.S.C. §1373. Those subsections explicitly prohibit the federal government from making the assertion upon which the District Court based its ruling.
http://libertylegalfoundation.org/wp-content/uploads/2012/02/ICA-Amicus-Brief.pdf
If i get arrested and actually go to court, the court is going to take the arresting officer’s word over mine 100% of the time. The Az law strictly prohibits racial profiling. For ANYONE to find themselves on the business end of this law, the officer must FIRST observe someone in violation of some law….that is sufficient for so-called probable cause. After probable cause has been obvserved by the officer, everything thereafter is fair game. Law enforcement officers are trained in such matters. AND, they are SWORN!!! Hence, the court taking THEIR word over MINE 1099.999999999999 % of the time. GET IT?!!!
In response to mespo727272
Whether true or not, and whether good policy or not, the purported reasons are the damage to Arizona that the influx of illegal immigrants has caused. This includes criminal activity by the people accepting money to smuggle people into the State, and ecological and social damage. As to the latter category, ranchers and the Tohono O’Odham Indian tribe have reported this.
The issue is (of course) complex and by some accounts there has been a merger of illegal drug smuggling and human smuggling. As a result (whether of one or both, I can’t say) there are public lands in the State that are considered unsafe (BLM lands and the Organ Pipe National Monument). In the case of the BLM lands, the federal government has posted signs warning people that they would be better served to recreate elsewhere.
Some say that this problem has intensified because the Feds have enforced border security in other states, with the result being an influx of problems in Arizona.
What Talkin Dog said! This entire law is not based on reality. It is based on fear mongering.
Good point TD and mespo….
TalkinDogs’ comment is (to me) silly because it does not conform to the requirements of the law at issue. The law explicitly bars use of race or national origin in the implementation of the law except to the extent that such use is “permitted by the United States or Arizona Constitution.”
I think the Professor has grossly misstated what Section 2(B) allows. He wrote “This provision [2(B)] also allows police to stop and arrest anyone suspected of being an undocumented immigrant.” I do not see this in the text of the law.
For those who do not know, SB 1070 was amended by HB 2162, so to understand the law one must look at the amended version. HB 2162 was issued (in part) to clarify Section 2(B). That version can be found at
http://www.azleg.gov//FormatDocument.asp?inDoc=/legtext/49leg/2r/bills/hb2162c.htm&Session_ID=93
The operable law at issue (as I understand it) is 11-1051. (SB 2162 has many other statutes as well as this one.)
Good comment there TalkinDog.
From a policy standpoint it makes little sense for the state law enforcement officials to monitor and enforce federal immigration law. State and local cops handle a myriad of state laws and are reasonably good at that. Why should they overlap federal jurisdiction and decide issues like asylum, national security threats, and the like. These are the province of the national government.
I think this issue should remain federally enforced…. Once this is given to the states then the rights are selectively enforced….. Preemption comes to mind….. Then the issues of double jeopardy raises its ugly head…. And I’m a traditional states rights guy…. Go figure….
The recusal was the right thing to do…..
If the nine Justices were standing at the bus terminal in Phoenix the cops would ask Scalia, Alito, Sotomayor, and Ginsberg the following: Show me your papers! Breyer, Kennedy and Roberts look to be folks who would be “with papers” while that first four would look like WOPS to a trained Arizona cop. Thomas might qet questioned for being Nigerian.
If I was arguing the case, that is how I would put it to them.
“With Kagan recused,”
I had asked this question before about Justice Kagan and her recusal from some cases,this info goes back to 2010.And does it matter?
“Elena Kagan recuses herself from half the Supreme Court’s cases this term”
By Robert Barnes
THE WASHINGTON POST
Published: 9:21 p.m. Sunday, Oct. 3, 2010
http://www.statesman.com/news/nation/elena-kagan-recuses-herself-from-half-the-supreme-951938.html