Which way Arizona? The prognosis on SB 1070

By Leslie Berestein Rojas

On Wednesday, the U.S. Supreme Court heard oral arguments in Arizona v. United States, Arizona’s challenge to the federal government’s assertion that the state anti-illegal immigration law SB 1070 conflicts with federal law. The justices are weighing four provisions of the law, blocked by a federal judge just before it took effect in July 2010.

These are Section 2(B), which requires police to try to determine the status of people they encounter if there is “reasonable suspicion” that they are in the country illegally and requires them to check the status of those they arrest; Section 3, which makes it a state crime to be without valid immigration papers; Section 5(C), which makes it a state crime to work or seek work in Arizona without valid work authorization; and Section 6, which empowers local police to arrest someone without a warrant if there is “probable cause” that the person committed a deportable offense.

A decision isn’t expected until June, but the questions from the justices this week signaled that Arizona stands a chance of prevailing, at least on the controversial provision involving “reasonable suspicion,” which critics fear could lead to racial profiling. While not factor in Supreme Court case, the profiling issue is at the heart of other pending legal challenges.

What to make of what transpired in the Supreme Court, and where might the court land?

Two constitutional  law experts, John C. Eastman and Elizabeth B. Wydra, provide differing prognoses in this Q&A debate. Eastman, a professor of law at Chapman University in Southern California, has served as counsel to legislators drafting anti-illegal immigration measures and has worked closely on some proposals with Kris Kobach, the legal author of SB 1070 who is now Kansas Secretary of State. Wydra is chief counsel for the Constitutional Accountability Center, a progressive legal think tank in Washington, D.C. that filed a friend-of-the-court brief supporting the federal government’s preemption argument in Arizona v. United States.

Wydra was in the courthouse for the hearing; Eastman followed it remotely and has studied the transcripts. Here is what they think.

M-A: What do you make of what happened in Wednesday’s hearing?

Eastman: I think the Solicitor General has been given an impossible task two cases in a row now. One of the things that is true about the Supreme Court is that if you go up there and your arguments have no merit, they figure that out pretty quickly. Even that Justice Sotomayor said that this statement wasn’t getting any takers, that is pretty significant.

I think the key provision, the most controversial, is going to upheld and it may be upheld by a significant majority. I think they rightly recognized that Arizona was not intruding on federal authority here. And the big point in that was when the Solicitor General had to concede that law enforcement offers in Arizona could ask about people’s legal immigration status, even before this law passed. Once you concede that, it is just the state directing its officers how to exercise their discretion. It is clearly permissible.

The sanctions on employees for working while illegally present, that one looks like it might fall. The issue there is a bit complicated. Under the Supreme Court’s existing preemption doctrine, if the federal statute says it scan’t impose any criminal sanctions on the employees, that would be expressly preempted. Here the government recognizes penalties against the employer, but does not recognize penalties against the employee. So the issue was whether congress intended to prevent states from weighing in on the employees, even if they didn’t expressly say so. It looks like the court is saying that the two are pretty closely related…it’s a pretty good indication that they won’t want to impose sanctions at all.

Wydra: It did seem like several of the justices, and perhaps a a majority of the justices, did not see a preemption problem. That is, they did not see a conflict with SB 1070’s “show us your papers” provision. But there also seemed to be a majority of the justices who were very concerned about the other provisions of the law, which include state criminal sanctions for people who don’t carry their immigration documents and unauthorized immigrants who seek work in Arizona.

The questioning really did focus on the provision that the public is certainly most concerned about, which is the provision that authorizes law enforcement officers to ask a person for their immigration papers if there is “reasonable suspicion” that the person is in the country illegally.

The Solicitor General really had to work hard to get the court to focus on other arguments, over the other provisions. I think that is in part because the administration’s arguments that the other provisions of the law are preempted by federal immigration law are really quite strong. It seemed even Chief Justice Roberts, who seemed to be leaning in the direction of Arizona on that papers-please provision, wasn’t buying Arizona’s arguments on these state criminal penalties in the other provisions of the law that have been enjoined.

M-A: What’s the general prognosis, as you see it?

Eastman: I think there will be a split. The most significant provisions, the ones that generated all the controversy, those look to me like they will be upheld. I think that is significant.

To get there, you have to completely reject the Department of Justice’s claim that the President, in setting priorities, gets to preempt state law. It is an act of Congress that can preempt state law, not presidential whim and priorities. I think it is a serious rebuke to the Obama administration’s entire litigation strategy.

As for the other provisions, the one making it a state law crime for failure to carry papers, this one is in line of splitting the difference. They have not done anything different that the federal government did. It is already a federal crime to fail to carry immigration papers. The state replicated that provision identically. There wasn’t much talk about that in the arguments. I think the way they are leaning would be okay. Congress didn’t make a deliberate choice not to criminalize that. The states are just doing what the federal government has already done. That will be upheld.

Judge Bolton, the trial court judge, rejected the argument that we ought to be demanding that people carry papers. It is a federal requirement. If you are here and in immigrant status, you have to carry your lawful identification and you have to have that on your person at all times, and it is a crime not to have it. Arizona mirrored the federal penalties there. They are just doing what the federal government has done. I think the preemption argument doesn’t work, because they are identical.

As for the fourth provision, relating to probable cause, there is nothing Arizona can do to force ICE (U.S. Immigration  and Customs Enforcement) to proceed with deportation proceedings. The state is not forcing the federal government to do anything other than what the statute provides.

Three (of the four provisions) stand a good chance of being upheld, save for the one related to employment. The three most significant ones, the ones that go to the heart of the claim that the President gets to set his own enforcement priorities, or in this case non-enforcement priorities, and that use that decision by the president to say Congress has preempted the states, those will likely be upheld.

Wydra: It’s always risky business to predict what the court will do based on oral arguments, but I do think there is a strong possibily that we could see a split decision, with the court continuing to block several of the provisions of SB 1070 from going into effect, but perhaps lifting the injunction on that most controversial “show us your papers” provision. I wouldn’t be surprised to see some parts of the law upheld by the Supreme Court, but not others.

If the court continues to block Section 3 of SB 1070, which makes it a state crime to not carry your immigrant registration papers with you, then the impact of the reasonable suspicion “show us your papers” provision changes. Right now, if the law were to go into effect in its entirety, if a law enforcement officer stopped you because they have this suspicion that you are in the country illegally, they would be responsible to check your status with the federal government. If the federal government responded that the person is in the U.S. illegally, even if the federal government had no interest in prosecuting or deporting this person, then under Section 3 of SB 1070, Arizona could criminally prosecute that person for failing to have proper immigrant registration documents.

So if the court continues to prevent Section 3 from going into effect, even if it upholds Arizona’s ability to stop people and ask them for their immigration papers, if the federal government decides that they have no interest in pursuing the deportation of that person, then Arizona can’t do anything on its own. They would have to release the person. The state would not have authority to prosecute someone on an immigration-related offense.

So I guess my point is, a lot of the headlines coming out of the arguments said it was a bad day for the U.S., that the justices were not buying the arguments made by Solicitor General Donald Verrilli, but while I think that might be true in effect on one of the provisions, the reasonable suspicion provision, I think the justices were buying the Solicitor General’s arguments on those other provisions of SB 1070.

So I don’t think that it’s as if the decision came out (already). With some of the provisions being allowed to go into effect, or one of the provisions being allowed to go into effect and the others continuing to remain blocked, I think I would not say that is a defeat for the administration.

Also, the United States is arguing that Section 2 conflicts with the federal government’s authority to set immigration policy and conflicts with federal immigration law. We heard Chief Justice Roberts make the argument that this provision doesn’t really do anything other than tell the federal government that there’s an unauthorized person present in the state of Arizona. The federal government can choose to deport that person or not.

Of course, the counter argument is that what Arizona is doing with this “show us your papers” provision is trying to put into place this single-minded aggressive “attrition through enforcement” policy that directly conflicts with the constitutional delegation of immigration policy and foreign affairs authority by the federal government.

I think that it’s not a done deal by any means. I thought Justice Kennedy asked some questions that indicated he was giving a hard look at that provision. Though certainly, it seemed that other justices did not find it problematic .

Q: Depending on how the court rules, how far reaching would the effect be? What could we expect to see?

Eastman: I think it could have a very far-reaching effect. The fact that you have five states adopt similar statutes while the legal controversy was still pending is pretty significant. I believe there are a number of other states that are prepared to adopt similar statutes if the Supreme Court upholds Arizona’s.

If not, then I think it is a huge campaign issue. People are fed up with the crime and collateral cost imposed by illegal immigration, and that the federal government isn’t doing anything about it, and the states are prevented from doing anything about it.

The significance, if it is upheld, is that there are many more law enforcement personnel at the state and local level than at the federal level. If Arizona’s statute is upheld, you have a force multiplier by a factor of ten or more helping enforce the federal laws. On the other hand, if it is struck down, and the administration seems bent on under-enforcing or deliberately not enforcing the current immigration laws, then I think this is a hugely important issue going into November.

The one thing that mitigates the political aspect, if the statute is upheld, is it seems at least possible with the original argument that they are dealing with the facial challenge, and one of the claims is that it will lead to racial profiling. Chief Justice Roberts began by asking: You’re not arguing this, right? But if racial profiling ends up being an issue when the statute actually goes into effect, then new challenges could be brought.

There is also the civil rights challenge, but it’s hard to make that argument. You have to assume law enforcement is going to violate the constitution. If that turns out to be the case it will be a different question. But on the front end, the law enforcement have been trained. They know what they are supposed to do and not allowed to do, so you can’t assume they will willfully violate the constitution. If once the statute goes into effect there are many more unconstitutional detentions, that would warrant a new challenge to the statute. That would be something else, but not on the front end.

Wydra: I think it certainly could give encouragement to other states to pass laws like SB 1070, but it is important to remember that there are still other lawsuits out there challenging SB 1070 explicitly on the civil right concerns and racial profiling concerns with the law, so those lawsuits would still be out there.

Even a ruling in this case that supported Arizona’s law wouldn’t prevent people from bringing up what you could call an as-applied challenge, as opposed to a facial challenge, which the U.S. has brought. The federal government has challenged SB 1070 as being unconstitutional on its face, meaning that even without going into effect, it violates the constitution because it conflicts with the federal government’s authority over immigration policy. Even if that challenge failed, there would still be the possibility of a person coming into court and saying “okay, even if it isn’t unconstitutional on its face, it is unconstitutional as applied to me.”

It was interesting that Chief Justice Roberts, before Verrilli could even get two words out, jumped in with this question (about racial profiling). In part, that was a recognition of the intense public interest in the case. And while the government’s challenge to the law wasn’t technically about racial profiling, nonetheless, to the extent that SB 1070 seeks to create such a hostile environment that individuals in the state “self deport,” that is relevant to the federal government’s interest in its foreign policy and relations with other countries. As the Supreme Court held, the federal government has a foreign affairs interest in preventing severe harassment of other countries’ citizens who are present with our borders.

Now, we just wait.