Posted by AzBlueMeanie:
This week the U.S. Supreme Court will hold its final week of oral arguments for this Term. Opinions in argued cases this Term are expected on Tuesday and Wednesday.
But the "big one" this week is oral argument of Arizona's infamous SB 1070 in Arizona v. United States (docket 11-182). The state’s immigrant control law will be defended by Paul D. Clement of the Washington law firm of Bancroft PLLC. Responding, and defending lower court orders that blocked four key parts of the state law, will be U.S. Solicitor General Donald B. Verrilli, Jr. The case will be decided by eight members of the Court, since Justice Elena Kagan is recused.
Lyle Denniston provides an exceptional preview at SCOTUSblog.com, Argument preview: Who controls immigrants’ lives?:
In 1903, a bronze plaque bearing the poem of Emma Lazarus was mounted on the Statue of Liberty in New York City’s entering harbor, and it used to be common for school children to memorize the most famous lines from hat poem: ”Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door!”
Now, some politicians and advocacy groups vie to out-promise each other with ways – sometimes harsh — to deal with perhaps 12 million individuals living illegally in the U.S. And this year, in particular, that is a dominant theme in the presidential and congressional elections campaigns. The Supreme Court, too, has been drawn into the controversy. With notable symbolism in this election year, the Court will conclude its hearings for the Term on Wednesday by examining what the Constitution says about who can regulate the lives of immigrants. Its final ruling is likely to emerge by early summer, when the election campaign will be in full swing.
Adding to the symbolism, the Court will be reviewing the constitutionality of an Arizona law — the first, and a trend-setter of sorts, among sharp crackdowns by state legislatures on illegal immigrants’ daily lives. Its shorthand title — “S.B. 1070″ — is now popularly known, much more so than its formal title, the “Support Our Law Enforcement and Safe Neighborhoods Act.” Its official goal, as passed by the legislature in 2010, is “attrition through enforcement.” By attrition, of course, it means forcing a reduction in the number of undocumented immigrants arriving or remaining in Arizona.
Arizona’s legislature, it is clear, does not want such individuals to move to other states; it wants them to return to their home countries, and, while they are in the state, to be restrained by tight controls on many aspects of their daily lives. Those features of S.B. 1070 are what has drawn the firm opposition of the federal government. The Justice Department is treating the state law as an intrusion on federal policy toward immigrants while they are in the U.S., and as a state-specific deportation measure conflicting with the federal government’s sole power to decide who can stay in the country.
The state’s basic arguments are that it has simply drawn up plans to cooperate with federal enforcement of the immigration laws, and has also taken steps to reduce what it believes is a rise in crimes committed by immigrants and what it sees as a threat to job opportunities for its legal residents. A state’s cooperation, it insists, is actually invited by federal law. And, it adds, the controls on immigrants living in Arizona are an exercise of the state’s traditional “police power” over those within its borders. The state has argued that it must react, because federal action has not worked, and the influx has caused serious issues of public safety and budgetary impact for education and social services.
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[The issue of profiling is one] that lower courts will have to grapple with first, but [is] not part of the federal government’s challenge... The Supreme Court is hearing only the federal [preemption] challenge at this stage, although many of the amicus briefs discuss the “profiling” claim.
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So far, there is no final ruling by a lower court for or against the constitutionality of any part of S.B. 1070. But the Ninth Circuit Court, upholding an earlier ruling by a federal judge in Arizona, has concluded that there is no way that the state can ultimately win federal court approval of four specific parts of the Arizona law. Thus, as the state’s appeal reached the Supreme Court, it is only in a preliminary legal state, with those four sections blocked from enforcement while full-scale tests of the merits can be reviewed by lower courts.
At issue before the Justices is the enforceability at this stage of those four provisions. If the Court concludes that — as written – they would unconstitutionally conflict with federal law or disrupt federal enforcement, it would not allow them to take effect. If it finds that they have no such impact on federal law or enforcement, it would let Arizona start enforcing them. Here are those four provisions:
1. A requirement that police in the state check the legal status of persons arrested before they may be released. That provision also allows police to stop and arrest anyone suspected of being an undocumented immigrant. Section 2(B).
2. A provision making it a state crime to be in Arizona without legal immigration papers. Section 3.
3. A ban forbidding all undocumented immigrants from applying for a job or working in the state. Section 5(C).
4. A provision that allows police, without a warrant, to arrest anyone believed to have committed a crime that would lead to deportation, even if the crime had been committed in another state. Section 6.
In a partially split decision in April 2011, the Ninth Circuit Court ruled that each of those provisions had been preempted by federal immigration law and policy, and thus they could not be enforced while the government’s lawsuit went forward in federal court in Arizona. States, the majority ruled, do not have their own free-standing authority to impose their own controls on illegal immigrants.
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S.B. 1070 is, in fact, much broader in scope than those four provisions. But the lower courts turned down the federal government challenge to a number of key sections of the law. The state thus was allowed to enforce a clause that creates a crime for transporting or harboring an illegal alien, or encouraging an alien to come to or live in Arizona if he does not have a legal right to enter. Moreover, the government did not even challenge ten other provisions of S.B. 1070, including a section that allows any Arizona resident to sue any state official or agency for a policy that would mean lax enforcement of federal immigration laws.
After the Circuit Court had ruled on the four sections, the state of Arizona did not wait for the case to move further toward a final merits decision in the lower courts, instead opting to go directly to the Supreme Court.
For a detailed analysis of the briefs filed and the arguments made by the litigants, continue reading Argument preview: Who controls immigrants’ lives? Each side in the case has drawn the support of about two dozen amicus briefs.
For the Arizona law to survive it would have to gain the support of five Justices. With Justice Kagan not taking part, a 4-4 split among those who are taking part would simply uphold — without a written opinion — the Ninth Circuit decision barring enforcement of the four provisions at issue.
Lyle Denniston continues:
There appears to be [five] votes on the Court for only a very sparing use of “implied preemption” theory. As recently as last May, Chief Justice John G. Roberts, Jr., in a comment supported by Justices Samuel A. Alito, Jr., Anthony M. Kennedy and Antonin Scalia, remarked (internal quotation marks in the original): “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.’ “
That comment, of course, came as the Court upheld another Arizona law dealing with legal restraints on undocumented immigrants: a law that severely punished businesses in the state for putting such immigrants on their payrolls. (U.S. Chamber of Commerce v. Whiting, docket 09-115, decided last May 26.)
The decisive question for S.B. 1070′s fate, then, may well be whether the federal government and its supporting amici have crossed that “high threshold” and thus have shown that Arizona’s law conflicts with federal policies or priorities. That side would probably have to attract only one vote from the five just mentioned to prevail, since Justices Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor might be expected to vote to strike down S.B. 1070; they dissented in the Whiting case. Those three plus a fourth would sustain the Ninth Circuit decision against S.B. 1070.
The only issue to be decided by the U.S. Supreme Court is whether Arizona can enforce the four provisions of SB 1070 during the pendency of this litigation, or whether those four provisions are facially unconstitutional and cannot be enforced.
Lyle Denniston adds an interesting twist: "Arizona’s legislature, in enacting the law, said explicitly that it designed all of the provisions of the statute to work together to keep undocumented immigrants from entering, from remaining, and from getting jobs in the state. Perhaps that might be enough to show that no part of the law was intended to remain on the books if a key part of it fell."
This would be an ironic twist for Paul Clement who just argued to the Court that the Affordable Care Act should be struck down in its entirely if the Court found any provision unconstitutional, arguing against any implied severability.
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