By Pratheepan Gulasekaram, Assistant Professor, Santa Clara University School of Law. Professor Gulasekaram teaches Constitutional Law and Immigration. He is currently working on a book with Prof. Karthick Ramakrishnan (political science, U.C. Riverside) on the political and legal dynamics of immigration federalism.
Pro-immigrant advocates – and I count myself among them – will be anxiously listening to oral argument in U.S. v. Arizona, searching for clues as to whether the Court will uphold the preliminary injunction against Arizona’s now-notorious SB 1070. Riding the momentum of district court and appellate court victories, and with the clear weight of precedent and academic opinion on its side, the federal government’s legal case appears sound. For many progressives and immigrant advocates who have been wearily following the recent rise of state and local regulations the case appears to offer the promise of a final resolution to the question whether subfederal jurisdictions can engage in immigration enforcement.
Except, it likely will not provide this anticipated resolution. While a victory for the federal government could establish powerful Supreme Court precedent against subfederal participation, there are at least four reasons why Arizona will not end the contentious national debate and policy battle over state and local involvement in immigration regulation. First, because Justice Kagan has recused herself, there exists a distinct possibility that the case could result in a split 4-4 vote, producing no majority opinion. Second, the district court never enjoined the provision of SB 1070 that announced the state’s intention to make “attrition through enforcement” the policy of the state. Third, the political and legislative dynamics producing this recent proliferation of state and local laws suggest that restrictionist policy activists will not be deterred by the Court’s decision. And, finally, regardless of the result in the case, subfederal jurisdictions can, and in some cases must, participate in enforcement programs condoned by federal law. I briefly elaborate on each of these points below.