Supreme Court Decision This Week on Arizona Immigration Law: What To Expect

It comes down to this. It has been two years and two months since Arizona’s landmark immigration law S.B. 1070 went into effect, was subsequently challenged by the Justice Department, and blocked by a Federal judge.

The Supreme Court will issue a ruling on S.B. 1070, either today or Thursday- the Court’s last day of its current session. The most controversial cases yet to come are 1070 and ObamaCare. It is possible for the Court to further extend the session, but experts consider that unlikely.

It seems likely to us at that S.B. 1070′s decision is likely to come first, with the Court leaving the politically white-hot healthcare law for last.

Keep in mind that Justice Elaine Kagan has recused herself from this decision, since she assisted the Administration’s case against it as Solicitor General, prior to her nomination to the bench. Therefore, a decision in favor of the law would be a 5-3 or better vote. A 4-4 tie would reject the law, since it would uphold the 9th Circuit’s injunction against it.

How We Got Here

The Supreme Court decision will include the following provisons of S.B. 1070 which were blocked by Federal District Judge Susan Bolton in July 2010. Below we analyze the sections, and provide our prediction of how the Court is likely to act. Even if just those two provisions we expect are upheld, it will unleash an effort to extend similar provisions to states across America…

• Section 2(B) – Check Immigration Status Based Upon “Reasonable Suspicion”
  This section requires state and local police officers to attempt to determine the immigration status of any person stopped under state or local law if “reasonable suspicion” exists that the person is unlawfully present in the United States. (Note: “reasonable suspicion” means having a valid reason to suspect unlawful activity, but not enough evidence to make an arrest.) This section also requires state and local authorities to determine the immigration status of any person placed under arrest, regardless of whether the person is suspected of being in the country unlawfully.
  NOTES: This is the most critical provision. Despite numerous lower court arguments and endless news and blog disputes, “reasonable suspicion” has long been settled law. In Terry v. Ohio (1968), the U.S. Supreme Court clearly stated that it does not violate the 4th Amendment.Also, the U.S. Solictor General Donald Verilli himself had to concede that law enforcement officers in Arizona could ask about people’s legal immigration status even before this law passed. Once you concede that, the fight becomes simply whether the state can direct its officers how to exercise their discretion.  And that is clearly permissible.

SWA expects the Court to uphold this Section. 

• Section 3 – Illegal immigration a State Crime
  This provision makes it a crime under Arizona law for unauthorized immigrants to violate the provisions of federal law requiring them to apply for “registration” with the federal government and to carry a registration card if one has been issued to them. Violations of this provision are punishable by up to 20 days in jail for a first violation and 30 days in jail for subsequent violations.
  NOTES: The Administration’s argument against this provision is that Federal law proscribes only a civil violation for such offenses, whereas Arizona makes the act of being in the state illegally a criminal offense. Comments by justices including Chief Justice John Roberts and Justice Alito, show that there is less than a consensus to uphold this Section. However this provision takes on new importance in light of Obama’s recent amnesty decree for so-called “Dreamers”, which would outrageously extend to well over 2 million illegal aliens. If the Court leaves this Section intact, those individuals would still be subject to jail time in Arizona, despite Obama’s edict.

SWA believes the Court is more likely than not to overturn this Section.

• Section 5(C) – Day laborers solicitation
  This section makes it a crime under Arizona law for immigrants who are not authorized to work in the United States to apply for work, solicit work in a public place, or perform work within the state’s borders. The term “solicit” means any form of communication, including a gesture or nod, indicating that a person is willing to be employed. Violations of this provision are punishable by up to six months in jail and a $2,500 fine.
  NOTES: This is the least important provision of S.B. 1070 to Arizona. That said, it is also quite problematic, mostly because it is the subject of litigation elsewhere, including a Redondo Beach, California provision that was first upheld and then blocked by a Federal appeals court, and an appeal was rejected by the Supreme Court. In addition, Justice Susan Bolton recently blocked this provision in Arizona’s S.B. 1070 as well, due to a separate lawsuit – asserting that it violates the First Amendment protect of  ”commercial speech” (which seems ludicrous to SWA, since illegal aliens could never legally register as commercial entities, such as sole proprietors or LLCs). The justices may be content to let this case work its way up to them and be decided separately. Or, they could uphold the provision, which would surprise us and many Court observers. One issues which could be a wildcard is the Court’s ruling in favor of Arizona’s E-Verify law and employer sanctions in 2010 – which might lean Kennedy towards support of Section 5(C).

SWA believes the the Court is likely to reject this provision.

• Section 6 – “Probable Cause” Arrests of Illegal Aliens
  This section authorizes state and local police officers to arrest immigrants without a warrant where “probable cause” exists that they committed a public offense making them removable from the United States. (Note: “probable cause” means having enough evidence of unlawful activity to obtain a warrant or make an arrest.) Under the provision, Arizona law enforcement officers may arrest lawfully present immigrants for crimes committed outside the state, or for crimes for which they were previously incarcerated, if the commission of such a crime is grounds for deportation.
  NOTES: This is another critical “must have” section, which contributed greatly to the exodus of 100,000 illegal aliens from Arizona after the passage of S.B. 1070. It is a huge deterrent, since they would perpetually be under threat of arrest and removal. And based on the arguments before the court, many similar to the arguments over Section 2(B), the justices did not see any Federal preemption applicable in this Section. In addition, this section is perfectly compatible with the Immigration Reform Acts of 1996 establishing 287(g) Federal-State cooperation in enforcement of immigration laws.

SWA expects the Court to uphold this section. 

The gist of the Obama Administration’s argument against the above provisions is that they preempted by federal law, meaning they are in conflict with federal law because federal law takes precedence as the law of the land.  The basis of this argument is the Constitutional Article I, section 8, clause 4:

“The Congress shall have Power…To establish a uniform Rule of Naturalization….”

The Administration has also argued that Arizona’s law impedes the United States’ ability to interface with foreign nations by interfering with foreign nationals, a bizarre claim butressed by Mexico’s filing of an amicus curiae against S.B. 1070.

Of course the Administration did not go anywhere near the Constitutional section that – if honored – would make the Arizona law completely unneccessary, Article IV, Section 4:

“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against invasion….”

We hope that five justices see through the hypocrisy of the Administration’s position against Arizona, and uphold most of 1070, if not all of it.

After the Decision

If the Supreme Court rules as we predict they will, then it will have an immediate effect on both Arizona and the states that have recently enacted anti-illegal immigration laws, styled after SB 1070.

While similar laws have been floated in numerous states, those in which they have taken root include Georgia, Alabama, South Carolina, Utah and Indiana, all of which have enacted their own versions of SB 1070. Alabama, South Carolina and Utah have also been sued by the federal government on pre-emption grounds; others have been sued by civil rights groups.

SWA’s legal team have been most involved with the Alabama statute, HB 56, substantial sections of which have blocked by the 11th Circuit Appeals court (details here). A Supreme Court ruling upholding 1070 could have an immediate effect on this injunction, as well as court actions against the Georgia, South Carolina and Utah laws.