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The Alabama ruling, SB 1070 and the Supreme Court: What's next?

The U.S. Supreme Court Building, May 2006
The U.S. Supreme Court Building, May 2006
Photo by OZinOH/Flickr (Creative Commons)

As it begins its new term today, the U.S. Supreme Court is expected to consider an appeal from the state of Arizona on SB 1070, the controversial 2010 anti-illegal immigration law that has since spurred copycat laws throughout the United States - but whose key provisions remain blocked by a federal judge's ruling in July of last year.

Among those provisions is one that would allow local police to check for immigration status if there is "reasonable suspicion" that people they encounter while conducting their work could be in the country illegally. But while this component of the law hasn't gone into effect in Arizona, it was just allowed in Alabama by a federal judge in Birmingham last week, who issued a contradictory ruling when considering an even stricter post-SB 1070 immigration crackdown measure in that state.

While blocking other provisions, the Birmingham judge also upheld another controversial aspect of the Alabama law, one that requires public schools to check the immigration status of students. The decision on this provision has since been tied to a rash of school absences.

What does last week's ruling in Alabama bode for SB 1070 and state immigration laws in general as the Supreme Court begins its new term? For starters, with two different federal judges in two states now having issued contradictory rulings on state immigration laws, the Alabama ruling ups the ante that the high court will take up SB 1070, potentially settling once and for all whether states can or cannot enforce immigration laws.

The Alabama decision itself is on its way to appeals court. Here is what one legal expert told the International Business Times, which published a good analysis of the Alabama decision and what happens next on a larger scale:

"Because of the proliferation of state immigration laws, we need resolution from either the Supreme Court or Congress," Stephen Yale-Loehr, teaches Immigration Law at Cornell University Law School, told IBTimes. "Right now, for example, it is very hard for national employers to know what they can or cannot do in various states."

The analysis also pointed out that the federal-state conflict over immigration isn't limited to state laws, with state and local governments also clashing with the feds over immigration enforcement programs like Secure Communities, a fingerprint-sharing program that requires state and local cooperation. Another legal expert's opinion from the piece:
"I think that one of the open issues now, and its raised by the Alabama law and also Secure Communities, is what power does the federal government have over immigration, what power do the state governments have over immigration and what power does the federal government have to tell the states who to do when it comes to immigration?" said Kevin Johnson, Dean of the University of California, Davis School of Law.

"It seems to me at this point that when we have many states passing many immigration laws and you have the government enlisting the states and sometimes ordering them to enforce immigration law, something's got to give and you're going to need some kind of clarification from the court," he added.

In a different analysis, New America Media pointed to three Supreme Court decisions from last year that indicate the court is "open to local experiments regulating immigration."

These included a decision upholding an Arizona law that punishes employers who hire unauthorized workers; a decision upholding a California law allowing in-state tuition rates for undocumented students; and decision demanding a review of a lower court's ruling that local government's attempts in Hazleton, Pa. to restrict undocumented immigrants' ability to work and rent housing conflicted with federal law. From the piece:

Raising the stakes for the high court is a Sept. 28 decision by an Alabama judge upholding much of that state’s new immigration law, which is even more restrictive than SB 1070.

With the ruling, key provisions of the Alabama law—including the requirement that police check the status of people who might be undocumented immigrants, even during routine stops, and that businesses and schools verify the status of workers and students—that took effect Sept. 29.

At issue in these and other recent cases is the extent to which states and local governments will be allowed to determine how to restrict immigrants within their jurisdiction. The Supreme Court hinted strongly last term that it is open to local experiments regulating immigration, once considered the sole realm of the federal government.

This gives hope to supporters of laws like SB1070 and Alabama’s HB56 that seek to drastically curtail the rights of undocumented immigrants to live, work, go to school, and received other public services in their jurisdictions.

The Supreme Court is also expected to take up President Obama's health care law, affirmative action in colleges and universities and other divisive cases in addition to SB 1070.