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.
Photo from ElvertBarnes via flickr.