Arizona to defend SB 1070 this week
State argues case in Supreme Court
by Alia Beard Rau - Apr. 21, 2012 11:43 PM
The Republic | azcentral.com
Arizona will go before the U.S. Supreme Court on Wednesday to defend its immigration law, Senate Bill 1070, in a case that will determine the future of immigration enforcement nationwide.
National legal experts predict the high court's ruling will be a landmark decision that determines whether states have the right to enforce federal immigration laws as they see fit.
It is unusual for the Supreme Court to accept a case that hasn't yet been fully adjudicated by the lower courts, but the court appears to want to resolve the issue sooner rather than later. Several other states have passed laws similar to SB 1070, prompting conflicting legal rulings in various appeals-court districts.
"This could be one of the most significant immigration decisions of the last 20 or 30 years," said University of California-Davis School of Law Dean Kevin Johnson. "It raises all kinds of issues that make for great cases: Immigration is an issue of great public importance, it raises issues of state versus federal power and it comes at a time when there is a lot of attention being focused on what's going on on the border."
SB 1070, among other things, made it a state crime to be in the country illegally and stated that an officer engaged in a lawful stop, detention or arrest must, when practicable, ask about a person's legal status when reasonable suspicion exists that the person is in the U.S. illegally.
The key issue before the Supreme Court is whether Arizona has the right to enforce federal immigration laws the way it chooses. The U.S. Department of Justice in its lawsuit argued that immigration is an issue that only the federal government can address. The state argued that SB 1070 mirrors federal law and assists the federal government in enforcement.
The Supreme Court's ruling will affect laws nationwide, both the copycat SB 1070 laws that states such as Alabama have passed and future immigration-enforcement regulations that Arizona and other states may push. That ruling likely won't come until this summer.
Arizona lawmakers had tried unsuccessfully for years to get pieces of what later became SB 1070 passed. It took the alignment of the political stars in 2010 to get it done, most notably a Legislature dominated by conservative "tea party" Republicans, a Republican governor in need of political clout to win re-election and growing concern about the violence of Mexican drug cartels.
Lawmakers were ready to wage war against illegal immigrants. As the written intent of the law states, its goal is to deter the unlawful entry and presence of illegal immigrants in Arizona through a policy of "attrition through enforcement."
Gov. Jan Brewer signed SB 1070, which was sponsored by former Sen. Russell Pearce, R-Mesa, into law on April 23, 2010. The result was an international political firestorm. Hundreds of supporters and opponents rallied at the state Capitol. Opponents called for a boycott of Arizona that resulted in canceled conferences. Supporters sent Brewer hundreds of thousands of dollars to help fund the law's legal defense.
The U.S. Department of Justice sued, as did several individuals and groups.
Average Americans -- and Arizonans -- seemed to have mixed feelings about the law. Polls from 2010 indicated that a majority of both Arizonans and Americans supported SB 1070. But at the same time, polling indicated that a majority of Arizonans supported allowing working illegal immigrants with no criminal record to remain in Arizona.
Hours before it was scheduled to go into effect on July 29, 2010, Arizona federal Judge Susan Bolton stopped it.
Bolton ruled that immigration is the responsibility of the federal government, not individual states. She issued injunctions stopping five parts of the law: requiring a law-enforcement officer to check a person's immigration status in certain situations; making it a crime to not carry "alien-registration papers"; allowing for a warrantless arrest if there is cause to believe a person committed a crime that makes him or her removable from the U.S.; making it a crime for illegal immigrants to work; and making it a crime to impede traffic while picking up or being picked up as a day laborer.
That November, Arizona voters supported those behind SB 1070. Brewer won overwhelmingly, as did Pearce. Republicans won a supermajority in both the House and Senate, and within that majority were even more self-proclaimed tea-party Republicans.
Brewer pushed ahead with her support of the law. She appealed the injunction to the U.S. Court of Appeals for the 9th Circuit, which later upheld Bolton's injunction. She then appealed to the U.S. Supreme Court, asking it to overturn the lower-court rulings and allow the entire law to go into effect.
The law's 10 provisions that Bolton had allowed to go into effect seem to have had minimal impact on how law enforcement does business. Some law-enforcement agencies have said they've made a handful of arrests under the law, but others have said they are not enforcing any portions of the law. There has been no outcry from immigrants that law enforcement is using the law in a way that violates their rights.
Pearce has said the most important portion of the law allowed to go into effect requires local governments to enforce federal immigration law and eliminate "sanctuary city policies" that limited law enforcement's ability to question someone about their legal status.
It is somewhat unusual for the Supreme Court to take up a case at the preliminary-injunction stage instead of waiting for the lower courts to rule on the full merits of the case.
The underlying lawsuit the federal government filed challenging SB 1070, as well as several of the other cases filed against the law, is still awaiting trial before Bolton. But legal experts on both sides of the issue say that in this case, the injunction -- and the legal reasons given for its necessity -- is the case.
"If the justices thought the details of what might come out at a full trial would make a difference, they wouldn't have taken the case. There were a number of reasons to wait, but they took the case," said Jack Chin, a University of California-Davis School of Law professor who studied SB 1070 while teaching at the University of Arizona. "They want to rule."
While legal experts agree that pre-emption will dominate Wednesday's arguments, they differ over what the details of that debate will -- or should -- address.
Carissa Byrne Hessick, a professor at Arizona State University's Sandra Day O'Connor College of Law, said attorneys may focus not on whether the state can enforce federal immigration law but how many and which legal cases to pursue.
"The federal government has made it clear that their priority, when it comes to immigration enforcement, is people who are both here unauthorized and have a criminal background," she said. "Arizona is saying the federal government should have 100 percent enforcement and because it doesn't, we are going to enact our own laws that allow us to enforce in situations where the federal government doesn't."
Paul Bender, also a professor at the Sandra Day O'Connor College of Law, said the federal government's best chance may be to focus on the real-life impact of allowing the law -- and similar laws in any other state -- to go into effect.
"If any state can do something like this, you would have the possibility of every state in the country having some sheriff's deputy or city policeman going up to someone who looks Hispanic and saying, 'Show me your papers,' " Bender said. "That's really the strongest argument for the government to make."
And on the other side, Bender said, Arizona's most powerful argument is to show the impacts of the federal government not effectively enforcing federal immigration laws.
Chin said the legal argument goes beyond pre-emption. He said the federal government, even before there was federal law on immigration, determined the issue of immigration was within the federal government's purview.
"Pre-emption generally means some sort of conflict with federal statute," Chin said. "But this is a deeper issue about whether states have any power at all over the area, even if there is zero pre-emption because a law is completely consistent with federal law."
The U.S. Supreme Court chooses cases on issues that affect the country as a whole and those that have arisen in more than one state. For example, before the high court heard arguments last year about the Arizona employer-sanctions law, which imposes civil sanctions against hiring undocumented workers, circuit courts issued differing rulings on similar cases in other states.
As other states passed laws similar to SB 1070 this year and lower courts differed in their rulings on the laws, the debate over what role states play in immigration enforcement has elevated.
Alabama's law overtook Arizona's as the toughest in the nation. The Alabama law mimics SB 1070 and then adds additional legal requirements, including requiring schools to document students' legal status.
"There has been more action on immigration at the state level than at any time ever before," Johnson said. "This case, if there's a majority opinion, sets up the ground rules and framework for what states can do when it comes to immigration enforcement."
Technically, the Supreme Court at this point must focus on the preliminary injunction. The court could lift the injunction and allow the entire law to go into effect, it could lift part of the injunction and allow portions of the law to go into effect or it could uphold the lower courts' ruling and keep the injunction in place.
Its decision is final on the injunction in the U.S Department of Justice case, but the ramifications of the ruling could go beyond that.
Bolton still needs to resolve the underlying case in this lawsuit, and another filed by civil-rights groups. She will have to base her decision on those underlying cases on whatever the Supreme Court rules on the injunction.
If the Supreme Court lifts the injunction, SB 1070 and every other law like it could go into effect. It would also open the door for new state laws enforcing federal immigration law. Supporters of these laws say they are vital to protecting national security at a time when the federal government has dropped the ball.
American Civil Liberties Union of Arizona Legal Director Dan Pochoda said if the court lifts the injunction, the loser is not the federal government but millions of Latinos who could face harassment because someone thinks they may be in the country illegally. The ACLU has filed a court brief to the Supreme Court opposing the law, and also has its own lawsuit pending before Bolton.
"We are certainly concerned," Pochoda said.
The Supreme Court's ruling is likely to have implications in the national political arena as well, particularly since a ruling would come only a few months before the presidential election.
A win for the U.S. Department of Justice would be a win President Barack Obama could tout, particularly with the Obama campaign's recent announcement that Arizona could be in play in the presidential election because of a Latino voter population outraged by SB 1070.
Pearce has endorsed likely Republican candidate Mitt Romney, saying that Romney also supports SB 1070's policy of attrition through enforcement. Kansas Secretary of State Kris Kobach, the attorney who helped Pearce write SB 1070, is a Romney adviser.
But in this particular case, there is a distinct possibility that nobody wins.
Justice Elena Kagan has recused herself from the case because she was Obama's solicitor general when the federal government filed the lawsuit against Arizona. That leaves the possibility of a 4-4 tie.
In that situation, the 9th Circuit ruling enjoining the law is upheld but it may apply only to this particular case and sets no precedent for other cases or states.
"Then the Supreme Court is likely to get the issue again because it will percolate in the 11th Circuit, which governs Alabama," Johnson said. "So if the court punts in this case, we'll just have the second half later."
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Monday: Read about the impacts of the immigration law over the past two years.
Tuesday: The U.S. Senate Judiciary Committee's Subcommittee on Immigration, Refugees and Border Security will hold a hearing on Senate Bill 1070 and the constitutionality of state immigration laws in Washington, D.C. The hearing begins at 7 a.m. Arizona time a.m. Speakers include former Arizona Sen. Russell Pearce, Democratic Sen. Steve Gallardo, former U.S. Sen. Dennis DeConcini and Arizona Employers for Immigration Reform Executive Director Todd Landfried. Watch the hearing online at azcentral.com and follow our live blog and analysis.
Wednesday: The U.S. Supreme Court will hear arguments in the U.S. Department of Justice v. Arizona lawsuit at 7 a.m. Arizona time. The court does not stream the hearing live, but visit azcentral.com for comprehensive media coverage of the event, including how the oral arguments are playing out in blogs, photos and social media. After the arguments, azcentral.com will live-stream post-hearing news conferences from attorneys and politicians, and cover the reaction to and analysis of the court arguments.
Twitter: Follow Arizona Republic, azcentral and Channel 12 coverage of SB 1070 from Washington, D.C., via Twitter. Follow @azcinsider and @azcpolitics and reporters @aliarau, @brahmresnik and @JoeDanaReports.
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