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.)
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.