Supreme Court Report

Immigration's Next Chapter: Arizona to Tell Its Tale of How to Stop Illegal Immigrants


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Farmer's Co-op members stage a protest in Mexico City in July 2010, calling for a boycott of U.S.-made products to show their disapproval of Arizona's immigration law. Photo AFP/Getty Images.

Arizona and its colorful governor, Jan Brewer, have a story to tell about the problem of illegal immigration. And the target audience is the U.S. Supreme Court, which this month will consider the constitutionality of the state’s legislative response to the problem.

Before launching into complex arguments about statutory pre-emption and the Constitution’s supremacy clause, the state devotes the first eight pages of its merits brief laying out the scope of the issue.

“Arizona shoulders a disproportionate burden of the national problem of illegal immigration,” the state argues in the brief defending the law known as S.B. 1070, which, among other provisions, requires the police to verify the citizenship status of people they stop or arrest. “The public safety and economic strains that this places on Arizona and its residents have created an emergency situation, which demanded a response.”

Gov. Brewer, a Republican who has clashed publicly and privately with President Barack Obama over immigration policy, puts it more directly in her new book, Scorpions for Breakfast: My Fight Against Special Interests, Liberal Media, and Cynical Politicos to Secure America’s Border.

“Let me be clear (as the president likes to say): The federal government has the obligation to secure our border,” the governor writes. “But if the feds decide to act as if they don’t, the states don’t have to lie down and take the consequences.”

Arizona v. United States is to be argued April 25, just about two years to the day after Gov. Brewer signed S.B. 1070 into law. The measure sparked intense protests in 2010, with the state losing millions of dollars in tourism and convention business.

Last year the Arizona Republic editorialized that S.B. 1070 “looks like a big, expensive con. It brought us boycotts, lost business, a sullied reputation, another court battle and a betrayal of Arizona’s heritage. Oh, yes, and it did nothing to make the border safer or reduce illegal immigration.”

Early in 2012, business interests in the state agreed to the Arizona Accord, a statement that favors federal solutions to immigration issues over state ones, focusing law-enforcement activities on criminal violations instead of civil ones, and acknowledging the economic role of immigrants. The accord came at a time when the immigration issue receded in Arizona’s politics amid the state’s slumping economy.

Still, S.B. 1070 remains on the books, as yet unenforced after it was enjoined. The Supreme Court must decide whether four of its provisions are pre-empted by federal law.

POLICE-CENTRIC PROVISIONS

Two challenged provisions have to do with the police. One states that for “any lawful stop, detention or arrest made” by Arizona law enforcement, “where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person.”

The law says a person is presumed to be in this country legally if he presents a valid Arizona driver’s license, tribal identification or a form of federal ID such as a resident alien card. To critics, this is the “papers, please” provision that evokes totalitarian government.

Another challenged provision expands the warrantless arrest authority of Arizona police officers. It would cover suspects the officer has probable cause to believe have committed an offense that would make them subject to removal from the United States.

A third provision creates a crime of being unlawfully present in the United States and failing to register with the federal government. And, finally, S.B. 1070 makes a crime of seeking work or working while not authorized to do so.

The U.S. Justice Department challenged S.B. 1070 on its face. “The Constitution and federal law do not permit the development of a patchwork of state and local immigration policies throughout the country,” the department said in a brief at the district court level.

“Although a state may adopt regulations that have an indirect or incidental effect on aliens, a state may not establish its own immigration policy or enforce state laws in a manner that interferes with federal immigration law. The state of Arizona has crossed this constitutional line.”

The district court preliminarily enjoined the four provisions, and a panel of the 9th U.S. Circuit Court of Appeals at San Francisco affirmed.

Last term, the Supreme Court upheld another Arizona law that addressed immigration, the Legal Arizona Workers Act. That law provides for the sus pension or revocation of the licenses of businesses that knowingly have unauthorized immigrants in their employ. The court held 5-3 in Chamber of Commerce of the United States v. Whiting that the measure was not pre-empted by federal law because a key federal immigration statute contained a savings clause excepting state licensure laws from pre-emption.

In the new case, Arizona and Brewer are represented by Paul D. Clement, a former U.S. solicitor general, whose brief tells the court that S.B. 1070 “does not impose its own substantive immigration standards, but simply uses state resources to enforce federal rules.”

The state may not adopt its own substantive immigration law, Clement conceded, but neither is it stripped of its own authority and left at the mercy of lax enforcement of federal laws.

Arizona is joined by numerous allies, including 15 other states, among them Alabama, which has adopted its own far-reaching immigration measure and is also being sued by the Obama administration.

The merits briefs for the federal government and its allies weren’t due until late March. Among the expected allies is the American Civil Liberties Union, which filed its own lawsuit against S.B. 1070.

“The core issue in the case is whether Arizona can basically overrule the federal government when it comes to immigration enforcement,” says Omar C. Jadwat, staff counsel with the ACLU Immigrants’ Rights Project. “You can’t have a national immigration policy and allow for these kinds of state vetoes.”

The ACLU and other critics of the Arizona measure refer to it as a “racial profiling law,” suggesting that the status-checking provision will lead to the police targeting Latinos for harsh enforcement.

Brewer’s book rejects the idea that the law would encourage racial profiling. “We had been scrupulous about mirroring the federal law,” she wrote. “If S.B. 1070 was racial profiling in the state of Arizona, then the federal government had been racially profiling for decades.”

Terry Goddard, former Democratic state attorney general who lost the governor’s race to Brewer in 2010, remains steadfastly against S.B. 1070.

“There’s no connection between 1070 and border security,” says Goddard, now a senior fellow at the Immigration Policy Center in Washington, D.C. “What we have, unfortunately, is a war of symbols. It’s done for effect and to promote a political agenda.”

STATES’ LATITUDE TO ACT

While the symbols and rhetoric over S.B. 1070 have been sharp, some legal experts are not convinced the states are without some latitude to act where the federal government has been ineffective.

Fordham University law professor Clare Huntington, who has written about immigration, says it is not clear that the federal government has “occupied the field” on immigration matters to the extent that state measures would be pre-empted.

“No state has tried to assert laws seeking to regulate entry and exit from the country, of course,” Huntington says. “But when we think about immigration more broadly, it’s not so clear that the federal government has acted in every area.

“And it’s not at all clear that the Constitution forbids a meaningful role for state and local governments” on immigration, adds Huntington, who had no view on the constitutionality of S.B. 1070.

Peter H. Schuck, a professor emeritus at Yale Law School who has written widely on immigration, agrees that there is wiggle room in pre-emption doctrine for certain state laws relating to immigration, though he believes at least some of the Arizona provisions are likely to be struck down.

“One could take the position that the sanctions the state imposes are the same as under federal law, and that would seem to defy pre-emption,” Schuck says. “On the other hand, one could argue that Arizona is changing the balance that Congress has struck.”

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