By Michael Doyle
McClatchy Newspapers 
December 12, 2011

WASHINGTON — The Supreme Court on Monday added another election-year blockbuster to its docket, as justices agreed to review Arizona’s most controversial immigration law.

Amid lots of sideline kibitzing, justices said they would review whether Arizona legislators went too far when they added immigration enforcement to local law enforcement duties.

The court’s decision means justices will be front and center on at least two politically incendiary issues just as the 2012 presidential and congressional campaigns are heating up. The court had previously agreed to hear challenges to the Obama administration’s health care law.

“(Now) add to that a major immigration decision that implicates the federal-state balance of power, and you’ve got one of the most momentous terms in recent court history,” said Elizabeth Wydra, chief counsel of the Constitutional Accountability Center.

The Arizona law requires that officers make a “reasonable attempt” to check the immigration status of individuals who they have stopped and for whom they have “reasonable suspicion” of being in the United States illegally. The law also requires that officers check the immigration status of anyone they have arrested before the individual is released.

The chief legal question is whether Arizona’s 2010 law infringes on the federal responsibility for handling border security and immigration.

“Arizona was acutely aware of the need to respect federal authority over immigration-related matters,” attorney Paul Clement insisted in an Arizona legal brief, further describing the state law as “cooperative” with federal efforts.

A former solicitor general in the George W. Bush administration, Clement also will be one of the chief attorneys arguing next year in the health care law challenges.
The San Francisco-based 9th Circuit Court of Appeals blocked the Arizona provisions from taking effect.

“By imposing mandatory obligations on state and local officers, Arizona interferes with the federal government’s authority to implement its priorities and strategies in law enforcement, turning Arizona officers into state-directed (federal) agents,” Judge Richard Paez wrote for the 9th Circuit.

Solicitor General Donald Verrilli Jr, arguing on the behalf of the Obama administration, added that the state’s law is “designed to establish Arizona’s own immigration policy, attrition through enforcement.'”

In a sign of the case’s high political profile, a dozen friend-of-the-court briefs were already filed as the court was deciding whether to hear it. More than four dozen conservative members of Congress, including House Judiciary Committee chairman Rep. Lamar Smith, R-Texas, sided with Arizona.

“This case reveals a clash between the administration and congressionally-enacted laws over the states’ role in immigration law enforcement,” the lawmakers noted.

In a statement, Arizona Gov. Jan Brewer praised the court for taking up the case. As is customary, the justices did not offer any further explanation for their decision.

“This case is not just about Arizona,” Brewer said. “It’s about every state grappling with the costs of illegal immigration. And it’s about the fundamental principle of federalism, under which these states have a right to defend their people.

Justice Elena Kagan has recused herself from the Arizona immigration case because of her past work as the Obama administration’s solicitor general. The administration had challenged Arizona’s law, called the Support Our Law Enforcement and Safe Neighborhoods Act.

Kagan’s recusal means only eight justices will be considering the Arizona case. This could complicate the outcome. If the eight remaining justices tie at four-four, the lower appellate court’s ruling is automatically upheld; in this case, that would mean Arizona loses.

The hour-long oral argument will probably be held by April, and a decision rendered by June.