Supreme Court takes Arizona immigration law case in key test of federal power

The US Supreme Court on Monday agreed to decide whether Arizona‘s tough immigration law, SB 1070, impermissibly interferes with the Obama administration‘s kinder, gentler approach to illegal immigration and is thus preempted by federal law.

The case, Arizona v. US (11-182), will be heard next spring by eight justices, with Justice Elena Kagan recusing herself from consideration of the appeal. (Justice Kagan served as President Obama’s solicitor general prior to her appointment to the Supreme Court.)

Accepting the case sets the stage for a second major election-year showdown at the nation’s highest court over a potential landmark legal dispute that brings into sharp focus a fundamental disagreement between Democrats and Republicans that has left the country bitterly divided.

Last month, the high court set aside an extraordinary 5-1/2 hours for oral argument on President Obama’s health-care reform law, including whether Congress overstepped constitutional limitations on its authority by ordering every American to purchase a government-approved level of health insurance or pay a penalty.

Like the health-care reform debate, the immigration fight also highlights conflicting approaches to a difficult national problem. The question is how best to address a chronic crisis of porous borders and rampant illegal immigration. There are currently an estimated 10 to 12 million undocumented immigrants in the US.

The problem is not unique to Arizona, nor is the federal-state legal battle. In addition to the Arizona law, the Obama administration is fighting to overturn tough immigration-related state laws passed in Alabama, Georgia, Indiana, Utah, and South Carolina.

The illegal immigration problem escalated in Arizona after border controls in Texas and California were beefed up following the 9/11 attacks. Arizona’s 370-mile border with Mexico has become a high-risk danger zone with the combination of human smuggling and the operations of violent Mexican drug cartels. Arizona spends several hundred million dollars a year in law enforcement costs, as well as to provide education and health care to illegal immigrants, according to the state’s brief to the high court.

The Obama administration’s secretary of homeland security, Janet Napolitano, knows the situation in Arizona well. In 2005, when she was Arizona’s governor, she declared a state of emergency because of escalating border violence and criticized the federal government for failing to effectively police the border.

“Arizona has repeatedly asked the federal government for more vigorous enforcement of the federal immigration laws, but to no avail,” Paul Clement, the Washington lawyer representing Arizona in the case, wrote in his brief urging the court to take up the state’s appeal.

In response to the perceived failure of the federal government to secure the border, Arizona legislators passed a state law to permit local and state officials to aggressively enforce immigration prohibitions. It was designed, in part, to encourage illegal immigrants to leave Arizona under a policy called “attrition through enforcement.” The state statute mirrors provisions of federal immigration law, for example, making it a violation of Arizona law to fail to abide by a federal requirement that non-citizens at all times carry a green card or other government-issued registration papers.

SB 1070 also made it a state crime for an undocumented immigrant to work as an employee or independent contractor in Arizona. It authorized state law enforcement officials to arrest without a warrant any person the officer had probable cause to believe committed a crime that would render them deportable from the US.

And in its most criticized provision, SB 1070 required state and local law enforcement officials to check the immigration status of anyone stopped or detained if the officer had reasonable suspicion the individual was present in the US illegally.

Immigrant rights groups objected to the new state law, saying it would lead to illegal racial profiling and harassment of legal immigrants and citizens of Hispanic appearance. The Obama administration entered the dispute, filing a lawsuit in federal court seeking to block implementation of SB 1070.

A federal judge agreed that the state law clashed with immigration enforcement priorities of the Obama administration. Four key provisions of the law were struck down because the judge said they were preempted by federal immigration laws. A panel of the Ninth US Circuit Court of Appeals affirmed the decision, ruling that there were no possible circumstances in which the challenged provisions could be enforced without violating the Constitution.

Republican Arizona Governor Jan Brewer asked the Supreme Court to take up the case.

Although the case involves provisions of immigration law, the underlying dispute between Arizona and the Obama administration is over opposing conceptions of federal and state power.

Arizona and other states argue that they have the authority to protect their citizens from crime and lawlessness linked to the national government’s failed immigration policies.

In contrast, the Obama administration argues that the power of the national government trumps any authority claimed by the states to aggressively enforce immigration laws.

The clash is further heightened by the politics of race and voter demographics. Latinos are the fastest growing immigrant group in the nation and Democrats are hopeful that they will become a potential game-changing force in American politics, helping to convert Republican red states and swing states into solid Democrat-voting blue states.

In his brief to the court, US Solicitor General Donald Verrilli says immigration laws passed by Congress allow federal officials the discretion to decide the proper balance between tough law enforcement sanctions, foreign policy considerations, and humanitarian concerns.

“Federal law and policy do not adopt such a one-size-fits-all approach to enforcement,” Mr. Verrilli wrote.

Under the Obama administration’s approach, federal law enforcement officials are focusing primarily on a subset of illegal immigrants who threaten public safety or national security. In contrast, Arizona’s law targets every illegal immigrant.

Arizona officials maintain that they are engaging in a form of cooperative federalism — a state using its laws and resources to help the national government fight illegal immigration. The Obama administration says such state efforts are neither cooperative nor helpful. They are designed to second-guess and frustrate federal policy, officials say.

“Arizona does not seek intergovernmental cooperation — it seeks to pursue its own policy of attrition through enforcement,” Verrilli said.

The solicitor general says immigration laws allow significant discretion to federal officials to set such national priorities. The national government has the power to preempt state laws that undercut those priorities, he said.

In his brief to the high court, Mr. Clement said it is Congress that wields the power to determine the substance of cooperative federalism between the states and the national government in matters of immigration enforcement — not a selective reading of the statutes by Obama administration officials. Congress did not preempt the states from aggressively enforcing the letter and spirit of provisions enshrined in federal law, he said.

“Preemption turns on judicial interpretation of congressional intent, not on what the executive branch unilaterally deems cooperative,” Clement wrote. “Multiple statutory provisions make clear that Congress’ judgment was to facilitate — not preempt — state efforts to enforce federal immigration laws.”

Clement adds: “Cooperative federalism is not a one-way street. States are not consigned to being silent partners who can enforce federal standards only if they do not complain about the federal government’s efforts.”

Like the dispute over health-care reform, the battle over state enforcement of immigration laws is ultimately a battle over government power and which branch gets to wield it.

As in the health-care dispute, the Obama administration is, again, working to maximize the power of the national government at the expense of state and local governments. According to Arizona, the administration is seeking to dictate the terms of immigration enforcement nationwide in direct opposition to state efforts to use their own extensive police powers to respond to what they perceive as a local threat to the health and safety of local residents.

The administration counters that the states are trying to infringe on power reserved to the national government. SB 1070’s provisions “do not represent an effort to cooperate with the federal government in enforcing federal immigration law; instead, they are designed to establish Arizona’s own immigration policy,” Verrilli said.

“The court of appeals correctly held that [federal immigration law] precludes the state’s effort to challenge federal policy rather than cooperate with federal officials in furthering it,” he said.

The case will be set for oral argument next spring and a decision is expected by late June.

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Comments (3)

  1. Submitted by Spencer Jones on 12/13/2011 - 03:04 pm.

    I believe that Gov.B and her state should decide what to do. They live day in and day out with the problem. We in the northern states have no idea the colateral problems with the deluge of illegals crossing our state. Her state voted. The people chose, not just a few, but the majority. If D.C. won’t act upon this NM’s had no choice but to inact a law to suit their need/needs. Why can’t people see that? We have given D.C. to many powers to control our states and lives. They only back laws that are fit for that political climate of that day? The laws are there. She has begged for help and Obama,Holder,even Nepletono will do nothing. They have signs that tell Americans, AMERICANS, that it is unsafe to travel in our own lands. When is enough going to be enough? Send the entire National Gaurd from CA,NV,NM,AZ,TX to the border and lock it down. Great training for desert conflicts, and a needed service. Would stop the distribution of drugs, guns and the rest. The millions upon millions for cameras and other bs don’t work. Who cares if you can see them. If you don’t return them they are still here.When will we say “This is the End” I hope its soon.

  2. Submitted by Dave Francis on 12/13/2011 - 04:54 pm.

    The bounty for illegal aliens who reach these shores, cross borders or deliberately enter under false pretenses from international flights is over a hundred billion dollars a year and rising per annum. Today it has emasculated states like California, Nevada and Texas. The only way to find a way out of this disorder is not through Former Speaker Newt Gingrich ideology, but through strict recourse of enforcing our laws. Since the 1986 Immigration Control and Reform Act nobody in Washington had had the people’s welfare in mind, until the sudden exploitation by foreign nationals on Arizona.

    While the Supreme Court fumbles over Arizona’s SB 1070 tough enforcement bills, we have a limited time to press for passage of E-Verify. Otherwise SCOTUS, could swing every way and America could find our ‘Rule of Law” by states becomes even more restrictions. Numerous states who are adverse to Obama National Health Care, we can effuse the House of Representatives pass the ‘The Legal Workforce ACT’ Ongoing as it is, the law to be read needs only 30 more co-sponsor out of a 100. Just yesterday a second Democrat Rep. Heath Shuler (D-N.C.) has added his name to the list. It’s been hard going, but thousands of well-informed Americans see this as a deterrent to claiming back payroll jobs, to US workers. Much more can be read about the nationwide E-Verify program by going to the NumbersUSA website. You can also participate by call you’re US or state Senator or Congressman at 202-224-3121. This is your connection to Washington and the operator will direct you to every politician’s office.

    There are 20 million Americans out of work and you can help supply a job, which is at the moment held by illegal aliens. On a wide scale as ICE has completed an assault on suspicious business, as illegal labor has been caught, those jobs have rapidly been filled by authorized individuals. Legal Blacks, Hispanics, White, Middle Easterners, African countries and others to claimed a job. The E-Verify program will even open more jobs to the 22 million people who are waiting.

    A second bill that has 80 sponsors is H.R.140, titled the Birthright Citizenship Act of 2011, which was introduced on Jan 5. 2011, by Rep. Steve King (R-IA) as of last month. This will ascertain that a baby smuggled into our nation, for the sole purpose of illegal parents to take advantage of the taxpayers. From the time of entry the parent can collect public entitlement, using the child as a fulcrum to remain here. Benefits will accumulate over many years of health care, education and further welfare supplements.

    Now we have to speculate if the diverse ‘denominational’ bishops are in a contest to see who can be the most insensitive to their unemployed American parishioners. Unquestionably, the United Methodist, Episcopal and Lutheran bishops are vying for the title. Except more than 30 Catholic bishops have perhaps put themselves ahead of the pack with their latest letter that could be interpreted to mean that unemployed Catholics should thank illegal aliens for breaking the law and taking their jobs?

    THOSE BISHOPS SIDING WITH THE INVADERS HAVE PUT THEIR CATHOLIC PARISHIONERS OUT OF WORK. Nobody is financially damaged more by the presence of foreign nationals than Hispanic-Americans who excessively live in the same communities and seek work in the equivalent non-agricultural occupations as illegal aliens.

    Not a soul would be helped more than Hispanic-Americans by the passage of a 50-state mandatory E-Verify bill that would move illegal aliens out of their jobs and open them up for unemployed Americans.

    But because high-immigration levels has become a religion for so many bishops, they unable to see their own anguished parishioners who are right in front of them asking for their version of “a cup of water.”

    Without doubt, no individual begrudges these bishops their high work to provide spiritual and basic physical support for illegal aliens, even as they would for those incarcerated. These are all humans who deserve the care of a church if they desire it, regardless of the laws they have broken. But these crusading churchmen need to re-examine their ideals about justice before they do more harm to the most helpless members of our national community by continuing to encourage a variety of versions of open-border ideologies.

  3. Submitted by Dave Francis on 12/13/2011 - 04:55 pm.

    With the catastrophe escalating over illegal immigration, there seems to be only a few new laws that formulate any sense to the American people. To stop both parties from superseding any previous laws from Congress, the only possible way to stop illegal immigration, is at the source? That is the business who hires illegal labor, and controlling it with the mandatory law titled ‘The Legal Workforce ACT’ (Bill H.R 2885.) Commonly known as E-Verify that will identify foreign nationals, sneaking into the workplace with stolen ID or whoever procured. Lamar Smith of Texas was the originator of the law, which had been created as a pilot program by former President Bush. To contain the Liberal Progressives in the Obama Administration from suing Arizona, Alabama, South Carolina, Utah, Georgia for trying to save further erosion of state funds by illegal aliens, they were forced to enact strictly policing laws. The courts have used their empowerment to place a huge burden on citizens and residents many unfunded mandates, with little financial aid from the government covering three decades.

    The bounty for illegal aliens who reach these shores, cross borders or deliberately enter under false pretenses from international flights is over a hundred billion dollars a year and rising per annum. Today it has emasculated states like California, Nevada and Texas. The only way to find a way out of this disorder is not through Former Speaker Newt Gingrich ideology, but through strict recourse of enforcing our laws. Since the 1986 Immigration Control and Reform Act nobody in Washington had had the people’s welfare in mind, until the sudden exploitation by foreign nationals on Arizona.

    While the Supreme Court fumbles over Arizona’s SB 1070 tough enforcement bills, we have a limited time to press for passage of E-Verify. Otherwise SCOTUS, could swing every way and America could find our ‘Rule of Law” by states becomes even more restrictions. Numerous states who are adverse to Obama National Health Care, we can effuse the House of Representatives pass the ‘The Legal Workforce ACT’ Ongoing as it is, the law to be read needs only 30 more co-sponsor out of a 100. Just yesterday a second Democrat Rep. Heath Shuler (D-N.C.) has added his name to the list. It’s been hard going, but thousands of well-informed Americans see this as a deterrent to claiming back payroll jobs, to US workers. Much more can be read about the nationwide E-Verify program by going to the NumbersUSA website. You can also participate by call you’re US or state Senator or Congressman at 202-224-3121. This is your connection to Washington and the operator will direct you to every politician’s office.

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