Supreme Court to look at Arizona immigration law

The U.S. Supreme Court will hear arguments in the lawsuit challenging the constitutionality of Arizona’s immigration law Senate Bill 1070.

The high court issued two-sentence decision Monday morning. No court date has yet been set.

Gov. Jan Brewer requested the hearing after the U.S. Court of Appeals for the 9th Circuit upheld federal court Judge Susan Bolton’s decision to halt several key parts of the law from going into effect in 2010. Bolton ruled that immigration is the bailiwick of the federal government, not individual states. The 9th Circuit ruling was a 2-1 decision.

Since then several other states have passed laws similar to SB 1070, and also are facing federal challenges by the U.S. Department of Justice.

Brewer, in a lengthy posting on her Facebook page, commended the Supreme Court for its decision and said she is “confident the High Court will uphold Arizona’s constitutional authority and obligation to protect the safety and welfare of its citizens.”

Brewer said the case is one that has far-reaching impacts for the entire nation.

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

The governor added she hoped a court ruling would provide much needed direction for states wishing to pursue immigration policy.

“Decades of federal inaction and misguided policy have created a dangerous and unacceptable situation and states deserve clarity from the court in terms of what role they have in fighting illegal immigration,” Brewer wrote.

Law’s history

Brewer signed SB 1070, which among other things made it a state crime to be in the country illegally, on April 23, 2010. It was scheduled to go into effect July 29.

Opponents filed seven lawsuits challenging the law. The Department of Justice asked Bolton to enjoin the law until the courts could review the full case.

Bolton allowed portions of the law that require local law enforcement to enforce federal immigration laws to the fullest extent, make it a crime to transport or harbor an illegal immigrant and make it a crime to pick up a day laborer in a roadway if it impedes traffic.

She issued an injunction stopping four parts of the law:

The portion that requires an officer to make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there’s reasonable suspicion that person is in the country illegally. This portion also requires law enforcement to check the immigration status of people arrested and hold them indefinitely until the status is determined.

The portion that creates a crime of failure to apply for or carry “alien-registration papers.”

The portion that allows for a warrantless arrest of a person where there is probable cause to believe the individual committed a public offense that makes him or her removable from the U.S.

The portion that makes it a crime for illegal immigrants to solicit, apply for or perform work. The state appealed the injunction to the 9th Circuit.

Appeals ruling

Two judges of the three-judge appeals court panel ruled that those four portions were unconstitutional.

“We simply are not persuaded that Arizona has the authority to unilaterally transform state and local law-enforcement officers into a state-controlled (Department of Homeland Security) force to carry out its declared policy of attrition,” Judge Richard Paez wrote for the majority.

SB 1070 states that the intent of the law is attrition through enforcement, to deter the unlawful entry and presence of illegal immigrants in Arizona.

Paez also said the law has created foreign-policy problems, and he was concerned about the impact of 50 states creating 50 immigration policies.

Judge Carlos Bea supported injunctions against two portions of the law but defended the sections that require law enforcement to check legal status and allow for a warrantless arrest.

“Congress has clearly expressed its intention that state officials should assist federal officials in checking the immigration status of aliens,” Bea wrote.

Brewer and state Attorney General Tom Horne said they believe the constitutionality of SB 1070 will eventually be affirmed.

“It has always been expected that this legal fight would be a long one,” according to joint statement.

“But the 9th Circuit Court is the most overturned appeals court in the nation for a reason.”

Former Sen. Russell Pearce, who wrote the law, said at the time that he was not surprised to see such a ruling from what he calls “the most liberal court in the nation.”

“They have a history of supporting lawbreakers over lawmakers,” he said. “We’ll move on the Supreme Court where we’ll have much better success.”

Supreme option

Not every petition made to the U.S. Supreme Court gets a hearing. The court chooses cases on issues that affect the country as a whole and usually on issues that have arisen in more than one state.

For example, before the high court heard argument about the Arizona employer-sanctions law, which imposes civil sanctions against hiring undocumented workers, there had been differing Circuit Court rulings on similar cases in other states.

But there has only been one circuit ruling that touched on issues similar to SB 1070, a 1999 federal case out of Oklahoma involving an arrest of an undocumented immigrant.

Constitutional Accountability Center Chief Counsel Elizabeth Wydra said in an e-mail that she was confident the Supreme Court will uphold the injunction.

“Congress’ constitutional power to make a ‘uniform rule of naturalization’ is one of the few places where the Constitution makes absolutely clear that the federal government’s power is exclusive,” Wydra said. “As Alexander Hamilton explained in Federalist 32: ‘if each state had the power to prescribe a distinct rule, there could be no uniform rule.’ “

Technically, the high court at this point can only focus on the preliminary injunction. The full case is still working its way through the Arizona federal court, and is still early in that process. But at this point, that injunction is the case. If the Supreme Court lifts the injunction, SB 1070 could go into effect in its entirety. Or the judges could lift portions of the stay.

If the Supreme Court upholds the entire injunction, SB 1070 will return to Bolton’s court, though she would be bound by the rulings and interpretations of the higher courts. The Department of Justice could then ask Bolton to rule in its favor on the full case and issue a permanent injunction.

And given her prior ruling and the higher court decisions, the case would likely then be dead and those portions of the law would never go into effect.