After years of contentious debate, the Supreme Court will finally weigh in on the constitutionality of Arizona’s infamous immigration law, Senate Bill 1070, tomorrow. The justices will hear oral arguments in Arizona v. United States (No. 11-182), the state’s attempt to overturn a preliminary injunction granted against several of the statute’s provisions.
There will undoubtedly be a bevy of news reports about tomorrow’s oral arguments (and I’ll be sure to post a link to the arguments when a recording becomes available). Unlike much of the media’s focus, however, the justices are likely to focus on whether Arizona’s law is preempted by the Constitution’s Supremacy Clause. If SB 1070 is preempted, then it is unconstitutional. If it’s not preempted, then it’s constitutional (at least under the Supremacy Clause). The Court could conclude that some provisions are preempted and others aren’t.
Indeed, only four provisions are before the Court:
· Section 2(B) which requires that police officers check the immigration status, where practicable, of all people stopped, detained, or arrested “where reasonable suspicion exists that the person is an alien and is unlawfully present” and “requires officers to verify—with the federal government—the immigration status of all arrestees before they are released, regardless of whether or not reasonable suspicion exists that the arrestee is an undocumented immigrant.” United States v. Arizona, 641 F.3d 339, 347 (9th Cir. 2011)
· Section 3, which, the Ninth Circuit explained, “essentially makes it a state crime for unauthorized immigrants to violate federal registration laws.” United States v. Arizona, 641 F.3d 339, 355 (9th Cir. 2011)
· Section 5(C), which makes it a state crime for an undocumented person to apply for, solicit, or perform work in Arizona. United States v. Arizona, 641 F.3d 339, 357 (9th Cir. 2011)
· Section 6, which permits warrantless arrests if probable cause exists that a suspect “has committed any public offense that makes the person removable from the United States.” United States v. Arizona, 641 F.3d 339, 360 (9th Cir. 2011).
In anticipation of oral arguments, I gave a short talk to students at Capital University Law School at an event sponsored by the school’s chapter of the American Constitution Society in which I summarized the Obama Administration’s enforcement of immigration law and compared it to the claims by Arizona legislators and others that Arizona had to act because the federal government isn’t doing its job of enforcing immigration law. In a PowerPoint presentation that I prepared for this talk, I also summarized the preemption doctrine that will likely take center stage in oral arguments.In anticipation of arguments,
It’s also worthwhile to highlight a couple of guides about what to expect as the case gets before the Court. Ben Winograd of the Immigration Policy Center wrote a wonderfully helpful explanation, Q&A Guide to Arizona v. United States: What You Need to Know About the Supreme Court Case Over SB 1070. The Center for American’s Marshall Fitz and Jeanne Butterfield also released a great resource summarizing the key legal issues that the case presents, Arizona’s ‘Show Me Your Papers’ Law in the U.S. Supreme Court: What’s at Stake?.
Dean Kevin Johnson (UC Davis) at the ImmigrationProf Blog wrote a great short review of the legal backdrop to this case and later followed it up with another commentary that suggests that the Court’s conservative wing might be most tempted to uphold sections 2(B) and 6 in line with the Ninth Circuit’s dissent.
Meanwhile, over at PrawfsBlawg, Professor Jack Chin (UC Davis) pointed out a very interesting effect that section 3 has on undocumented people: it criminalizes the failure to do something they can’t do. According to an amicus brief by the Leadership Conference on Civil and Human Rights that Chin discusses, section 3 criminalizes failure to register with the federal government, but the federal government has no mechanism for allowing undocumented people to register. State legislators have such limited understanding of immigration law that nuances like this can easily find their way into state attempts to regulate immigration. As Chin says, this is just another reason for states to keep out of the immigration business.
I’ll be eagerly anticipating the Court’s decision, which will likely be issued in June, and will be sure to post it on crImmigration.com as soon as it comes out.