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Fed Case Against SB 1070 Not ‘Selling Well’ in Supreme Court

Posted: Apr 25, 2012


WASHINGTON – U.S. Supreme Court justices expressed skepticism over the federal government’s arguments Wednesday morning in a hearing on Arizona’s controversial immigration law SB 1070. The justices could issue a decision as early as June.

Among the key questions at the heart of the case is whether states can enforce their own immigration laws.

During the hearing, justices questioned the argument used by the Obama administration’s Solicitor General Donald Verrilli that Arizona law would interfere with federal priorities for immigration enforcement whose stated focus is on criminals.

Justices examined four provisions of the Arizona law that were enjoined by lower federal courts. These include the requirement for law enforcement to inquire about an individual’s immigration status based on “reasonable suspicion,” penalties for not having legal documents to be in the state, making it a crime to seek employment as an undocumented immigrant, and the authorization of warrantless arrests of individuals.

Verrilli tried to persuade the justices to look at the overall impact the law could have when all of its provisions work together, leading to “massive incarceration of people who are illegally present” and raising concerns over U.S. relations with other countries.

The argument didn’t seem to convince some of the justices.

“Why don’t we avoid foreign international problems by simply deporting these people?” asked Justice Antonin Scalia.

Justices paid particular attention to the provision that mandates local police to ask about someone’s immigration status during a traffic stop. Alabama’s immigration law HB 56 has a similar provision that, unlike SB 1070, has gone into effect.

Chief Justice John Roberts pointed out that mandating local police in Arizona to run immigration checks by calling immigration authorities wouldn’t interfere with federal priorities, since the decision of whether to take the person into custody for removal was still left up to the federal agencies.

“It seems to me the federal government doesn’t want to know who is here illegally or not,” said Roberts.

Justice Anthony Kennedy, considered to be the swing vote, didn’t seem to buy into the federal government’s argument either.

“Can we say that a state must accept within its borders a person that is illegally present under federal law?” he asked.

Not ‘selling well’

Justice Sonia Sotomayor observed that the federal government’s argument wasn’t “selling well” and inquired mostly about the constitutional implications of detaining a person for an indefinite period of time in order to determine his or her immigration status.

Paul Clement, a former solicitor general under President George W. Bush, argued on behalf of the state of Arizona, saying it has been disproportionately affected by illegal immigration and has a right to take action when the federal government hasn’t.

The other aspect of SB 1070 that took the center stage Wednesday was the provision that makes it a state crime to fail to carry legal documents by not registering with the federal government.

Virrilli argued that asylum seekers and victims of domestic violence could be subject to detention and incarceration for not having documents, even though the federal government doesn’t consider them removable from the country.

Clement argued that the state could obtain that information from the federal government and it could be proven in court.

Sotomayor pointed out to Clement that his answer played into the federal government’s concern that this would take away resources by forcing them to spend time trying to figure out a person’s immigration status.

‘A little surprised’

Daniel Ortega, chairman of the National Council of La Raza (NCLR), said a decision can’t be inferred from the justices’ questions.

“Where they ultimately are going to end up is very difficult to say,” said Ortega, who is co-council in another pending lawsuit against SB 1070 brought by the Mexican American Legal Defend and Educational Fund (MALDEF) and several other civil rights organizations.

“But I was a little surprised at the number of justices that say if the state of Arizona wants to be cooperative in apprehending people who commit crimes on a federal level they should be able to do so.”

The line of questioning seemed to please SB 1070 supporters who were present at the hearing, like Arizona’s Republican Governor Jan Brewer and the bill’s author, former state senator Russell Pearce.

“I thought it went very well. I think the justices made it very clear,” said the former Republican senator. Pearce was recalled in a special election last year, when he lost his seat to another Republican who took a less hardline stance on immigration.

Missing from the hearing

The issue of racial profiling raised in other pending lawsuits against SB 1070 was not addressed in the federal government’s challenge of the law.

“The argument that this is racial profiling and discriminatory and violates portions of our Constitution was never made here, and I think this is unfortunate,” said Democratic Congressman Luis Gutiérrez, D-Ill.

Virrilli did make reference to similar policies in Arizona that have led to racial profiling. Currently the Department of Justice (DOJ) is considering suing the Maricopa County Sheriff’s Office for violating Latinos’ civil rights during its immigration sweeps.

Justice Scalia shut down the issue by asking a rhetorical question: “What does this have to do with federal immigration law? You must be talking about citizens and other people.”

‘An impetus to other states’

Five other states besides Arizona have similar bills on the books -- Alabama, Georgia, Indiana, South Carolina and Utah. All face challenges in federal courts. After Arizona Gov. Brewer signed SB 1070 into law on April 23, 2010, a federal judge blocked four portions of the bill. The Ninth Circuit Court of Appeals upheld that decision. Brewer challenged the decision, taking the case to the Supreme Court.

It is unclear whether or not the highest tribunal will rule on other aspects of SB 1070 that are already in effect. Among these is a provision that allows citizens to sue a law-enforcement agency if it imposes policies to discourage cooperation between police and federal immigration officials.

“This would give an impetus to other states to follow the model adopted in Arizona, if this is found constitutional,” said Jack Martin, special project director for the Federation for American Immigration Reform (FAIR), a national organization that has supported a wave of local immigration bills across the country. According to a report by the Southern Poverty Law Center, FAIR leaders also have ties to white supremacist groups.

“There are provisions that have been found legal by the courts, and what is at stake at the present time is simply the injunction of certain provisions of the Arizona law going into effect. The full case would be heard by the Supreme Court eventually even if this injunction is sustained,” said Martin.

Last year, the Supreme Court ruled in favor of another Arizona immigration bill known as the employer sanctions law. That decision had an impact on a similar law that had been declared unconstitutional in Hazelton, Penn. A federal appeals court there vacated its previous ruling that declared the law unconstitutional, opening the door for new legal arguments.

Whether other courts in Georgia and other states do the same will depend on how broad the Supreme Court’s ruling in this case is.

“It could be a landmark case depending on how they write their opinion,” said Thomas Saenz, president and general counsel of MALDEF.

Saenz stressed that other immigration bills across the country have different provisions from SB 1070 that are not currently on the radar of this case.

Justice Elena Kagan recused herself from the case presumably because of her role as a former solicitor general for the Obama administration. This opens the door for a 4-4 split decision. In the case of a tie, the lower court ruling would stand. But that would mean the Supreme Court would not issue an opinion elaborating on its reasoning, leaving no legal precedent for other states to follow.

Pending lawsuits related to racial profiling could potentially come before the Supreme Court at a later date.

“Even if they lift the injunction, there are still possibilities of the injunction being reinstated on other grounds,” said Saenz.




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