High Court to Consider Arizona’s Anti-Immigrant Law

by Jeremy Leaming

The Supreme Court announced this morning it will wade into yet another high-profile constitutional concern, taking for review Arizona’s controversial anti-immigrant law.

SCOTUSblog's Lyle Denniston, noting the Court has already agreed to consider the constitutionality of the Obama administration’s signature domestic law, the Affordable Care Act, and redistricting in Texas, the justices have now taken on “the searing constitutional – and political – controversy over state power to strictly limit the way undocumented immigrants live their lives in the U.S.”

Denniston notes, Ariz. Gov. Jan Brewer (pictured) is arguing that her state’s law, S.B. 1070, is a “major test of the sovereignty of the states to make their own social policies under traditional ‘police power’ principles.’” The Obama administration, which has also challenged parts of Alabama’s stringent anti-immigrant law, argues that the Arizona law undermines the federal government’s role in setting immigration policy. (Article I, Section 8 of the Constitution states that Congress has the power to “establish an uniform Rule of Naturalization," ….)

Earlier this year, the U.S. Court of Appeals for the Ninth Circuit blocked several provisions of S.B. 1070, including one that “allows police to arrest without a warrant any person for whom the officer has ‘probable cause to believe’ that the individual has committed any crime, anywhere, that would make that individual subject to being deported,” Denniston writes. Additionally, the Ninth Circuit blocked provisions that require state police to attempt to determine a suspect’s immigration status upon arresting them, that make it a crime to not carry immigration documentation and a misdemeanor for undocumented workers to seek and apply for work.

Justice Elena Kagan recused herself in the case, Arizona v. United States, apparently because she was involved in the handling of the case when she was U.S. Solicitor General. If, as The Huffington Post’s Mike Sacks notes, the justices split 4-4, the Ninth Circuit opinion would stand.

Karen Tumlin, an attorney with the National Immigration Law Center, applauded the high court for taking the case.

“This case boils down to a question of whether Arizona can mandate that its officers interrogate individuals about their immigration status and attempt to enforce civil immigration law,” Tumlin told ABC News.

The Republic, an Arizona daily, reports that Gov. Brewer also lauded the high court for taking the case, albeit in the hopes the Ninth Circuit is reversed. Brewer’s comments were posted on her Facebook page. “This case is not just about Arizona. It’s about every state grappling with the costs of illegal immigration, and it’s about the fundamental principle of federalism, under which these states have a right to defend their people.” 

The DOJ is also challenging Alabama’s tough anti-immigrant law. Last week, Alabama Attorney General Luther Strange issued a memorandum suggesting lawmakers make changes to that law, one The New York Times editorial board dubbed the “most-abusive-in-the nation.”

Strange, the Associated Press reported, said his suggested changes, if made, would make the law “easier to defend in court” and “remove burdens on law-abiding citizens.” Luther’s memorandum to Alabama legislators is available here.

In an ACS Issue Brief released this fall, Pratheepan Gulasekaram, a law professor at Santa Clara University School of Law, argued that rigid anti-immigrant policy, such as Arizona’s, is counterproductive and advances unrealistic policy.

“Arizona’s SB 1070 has the potential to criminalize the estimated 400,000 unlawfully present persons in the state,” Gulasekaram writes. “Actual discovery and prosecution of this entire population, and their subsequent removal, is practically impossible. In total, with current resources and capacity, the federal government can only deport a maximum of 400,000 noncitizens per year nationwide. Thus, SB 1070 only widens the gap between law and on-the-ground realities, further increasing the legitimacy crisis in immigration law.”  

[image via Gage Skidmore]