3 Bits Of Background For SCOTUS Immigration Arguments

The Supreme Court has another high profile showdown coming up in Arizona v. United States, the legal challenge over Arizona’s draconian “papers please” immigration law. Here’s background on the arguments.

1. When Are The Arguments?

Oral arguments are scheduled for Wednesday, April 25 which means we could expect a ruling sometime in late June, close in time to the ruling in the health care challenge. It is possible that the Justices divide 4-4 (Justice Kagan has recused herself), in which case the outcome will be announced shortly after the arguments close and the justices cast their initial votes.

Should the Court divide 4-4 on the ruling the Ninth Circuit’s decision would stand but no opinion will be issued meaning the case will not create precedent or bind lower courts. The practical effect would be that the preliminary injunction issued by the Ninth Circuit would remain in place and lower courts would continue to rule on the host of copycat bills in places like Alabama unless and until the Supreme Court agrees to hear a different challenge to one of those laws.

2. Who Is Involved?

The case will pit Paul Clement against Donald Verrilli Jr., their second high-profile match up after the health care arguments. Clement represents the state of Arizona and Verrilli the Obama administration. They will argue whether various provisions of SB 1070 are “preempted” by existing federal immigration laws. It’s a narrower issue than whether or not SB 1070 is “unconstitutional” and not quite as sexy as some of the potential constitutional challenges the law presents. This case is only concerned with this issues of federalism–the division of power between the federal government and the states. Those portions of SB 1070 under review are challenged as being in conflict with existing federal law. Just because a state law is “preempted” by federal law does not mean it is per se in violation of the Constitution. It simply means that it is in conflict with a federal statute, which Congress ultimately has the power to change.

3. What Parts Of SB 1070 Are Under Review?

The Supreme Court won’t hear challenges to the entire law, just those parts enjoined by the federal court in previous rulings. Those sections are:

Section 2(B) requires state and local police officers to attempt to determine the immigration status of any person stopped under state or local law if “reasonable suspicion” exists that the person is unlawfully present in the United States. This section also requires state and local authorities to determine the immigration status of any person placed under arrest, regardless of whether the person is suspected of being in the country unlawfully.

• Section 3 makes it a crime under Arizona law for unauthorized immigrants to violate the provisions of federal law requiring them to apply for “registration” with the federal government and to carry a registration card if one has been issued to them. Violations of this provision are punishable by up to 20 days in jail for a first violation and 30 days in jail for subsequent violations.

Section 5(C) makes it a crime under Arizona law for immigrants who are not authorized to work in the United States to apply for work, solicit work in a public place, or perform work within the state’s borders. The term “solicit” means any form of communication, including a gesture or nod, indicating that a person is willing to be employed. Violations of this provision are punishable by up to six months in jail and a $2,500 fine.

• Section 6 authorizes state and local police officers to arrest immigrants without a warrant where “probable cause” exists that they committed a public offense making them removable from the United States.  Under the provision, Arizona law enforcement officers may arrest lawfully present immigrants for crimes committed outside the state, or for crimes for which they were previously incarcerated, if the commission of such a crime is grounds for deportation.

As the arguments get closer I’ll break down the arguments for and against preemption, explain the possible outcomes and implications of a ruling in either direction, and of course cover oral arguments. Similar to the health care challenge, there are several preliminary arguments the parties will make and the justices consider before getting into the meat of the legal challenge.

Needless to say, it’s shaping up to be quite a term for the Roberts Court.

Related Stories:

Supreme Court To Hear Immigration Challenge

Arizona Asks SCOTUS To Reinstate Immigration Law

9th Circuit Upholds Stay Of Arizona Immigration Bill

Photo from ElvertBarnes via flickr.


LMj Sunshine

Thank you.

LMj Sunshine

Thank you.

Danielle A.
Danielle Medina5 years ago

Sorry but I have to say "no" on this issue-the Constitution says Americans have a right to expect to be protected from invasion from other countries-yet when illegals are pouring over our pourous southern border and our government rewards their illegal entries by giving them benefits paid for by American taxpayers (even some benefits that are not available to Americans!) that is WRONG. People who agree with me, please join NumbersUSA and ALIPAC (two online activist groups who represent Americans of every race and background)!

J.L. A.
JL A5 years ago

Thanks for keeping us updated and the issues clear!

Myron Scott
Myron Scott5 years ago

Bigot is bigot.

John Mansky
John Mansky5 years ago

Illegal is illegal!!!

Sue Jones
Sue Jones5 years ago

Heard Micheal Bloomberg on NPR yesterday - he was talking about New York, of course, but he also brought up immigrants. What he had to say on that issue was relevant and didn't sound like the typical Teapublican rhetoric. He talked about how the inner cities in so many cities were dying but that immigrants were our hope for the future - that they always have been because they come looking for a better life and turn dying cities into thriving communities. I'm sure in a city as diverse as New York, he probably has more opportunity to see the value of immigrants. If you look at our history - every time there is an economic downturn, we start blaming the immigrants - legal or illegal - the Irish, the Germans, the Italians - all have had their "day in the hotseat" - seems human always have to blame someone else for their lousy lives and those who look different or think differently are the usual targets.

Billie C.
Billie C5 years ago

time for the feds to do their job and remove all illegals. if not then scotus should allow the states the right to do it. immigrants come here legally they aren't the problem.
illegal is illegal. anybody helping them is committing a crime, that includes companies that hire them and people that rent to them.
illegals need to be sent back home and come in the right way. if they have had kids here the kids go home with them. they shouldn't be citizens since the parents were illegal. time to stop the flood.

Duane B.
.5 years ago

Thank you for sharing.

Myron Scott
Myron Scott5 years ago


I am an Arizona citizen who has opposed 1070 from the start;
so, I sincerely hope Verilli does a better job on this than he did
in the Obamacare case. If not, he really needs to go.