Supreme Court to Weigh in on Arizona Immigration Law

The legal skirmishing has gone on for months, ever since Arizona’s controversial immigration law, popularly known as S.B. 1070, was signed into law back in April 2010. You may recall that a year later, in April 2011, a federal appeals court upheld a lower court decision that prevented several provisions of the measure from taking effect, including language that would have:

  • required police in Arizona to question people met through traffic stops and other routine encounters if there was “reasonable suspicion” that an individual was in the United States illegally;
  • allowed police to make warrantless arrests of such persons;
  • made it illegal to work or seek work in Arizona without proper work authorization from federal authorities;
  • made it a criminal offense under Arizona law to be unlawfully present in the state.

(See Appeals Court Upholds Injunction on Controversial Arizona Law, MurthyDotCom, 22.Apr.2011.) These provisions have been in legal limbo – enjoined from taking effect – while the courts sort out their constitutionality.

Now the stage is set for a final showdown over Arizona’s controversial immigration law, with the Supreme Court’s December 12th decision to hear the case that’s been working its way through the courts since the summer of 2010 – the Justice Department’s lawsuit alleging that S.B. 1070 violates the Supremacy Clause of the U.S. Constitution, by encroaching on an area of exclusive federal jurisdiction: immigration. (See Supreme Court to Hear Challenge of Arizona’s Restrictive Immigration Law, by Robert Barnes, Washington Post, 12.Dec.2011.)

According to the Washington Post, the Justice Department’s filing said the offending provisions of Arizona’s law were not designed to help federal authorities enforce federal immigration law, but “to establish Arizona’s own immigration policy,” an attempt one would expect to fail, under federal pre-emption doctrine. For its part, Arizona counters that their legislative response was necessary because the federal government failed to stem the tide of illegal immigration.

To many, the case seems like a constitutional slam dunk: Article VI, clause 2 of the U.S. Constitution expressly provides that:

“This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding.”

In Article I, sec. 8 of the Constitution, Congress is explicitly granted the right “to establish a uniform Rule of Naturalization,” which clearly includes the right to regulate immigration, writ large, right? As it turns out, it can be a fairly complex matter to determine whether a federal law preempts – and thus invalidates – a state law on federal supremacy grounds. (For a concise discussion of the technicalities, see The Supremacy Clause v. S.B. 1070: Can Arizona’s Strict Illegal Immigration Law Withstand Constitutional Challenge? by Brittany Grome, 18.Jul.2010, Albany Government Law Review Fireplace blog.)

Brittany Grome, author of the Albany Government Law Review piece, concludes, “even if Arizona is not precluded from passing S.B. 1070 generally, the specific provisions within the law may also be attacked on preemption grounds.” The open question is what role the ideological valances of the court will play, in a politically-charged decision at a politically-charged time: the Supreme Court is expected to render a decision early next summer, right in the middle of the presidential campaign. With the Latino vote likely to play a decisive role in the election, the Court’s decision will have a significant political impact, perhaps unlike anything we’ve seen since Bush v. Gore.

Further complicating matters is the fact that Justice Elena Kagan will sit out the case, “presumably because she worked on the issue during her time as Obama’s solicitor general,” as the Washington Post reported. In other words, this strengthens the conservative majority on the Court, and makes a finding of federal preemption seem less likely. However the Court rules, state legislatures all over the country will be watching. If the Arizona law passes constitutional muster, we may see a lot more S.B. 1070s popping up all over the country, like poison mushrooms after a rainstorm.


Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.