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Now that the Supreme Court has taken up SB 1070, what happens next?

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On Monday, the U.S. Supreme Court announced that it would take up an appeal by the state of Arizona regarding SB 1070, the state's controversial and trend-setting 2010 anti-illegal immigration law that has since inspired similar laws in other states. Before it was implemented in July of last year, a federal judge in Arizona blocked some of SB 1070's main provisions, including one that would empower local police to check the immigration status of people they suspect of being in the country illegally.

The Supreme Court justices won’t be weighing the merits of SB 1070, but rather the merits of the lower federal court judge’s decision, made pending a constitutional challenge from the Obama administration filed shortly before the law took effect and since upheld in appeals court. That lawsuit asserts that immigration law is the domain of the federal government, pre-empting state attempts to set their own rules.

So what happens next? Explaining the legal stakes is law professor and immigration blogger Kevin R. Johnson, dean of the UC Davis School of Law and an editor of the ImmigrationProf Blog. A few months ago in an analysis of the SB 1070 case, Johnson predicted that the Supreme Court would take up Arizona's appeal, and weighed in on the potential influence of Chamber of Commerce v. Whiting, a case involving a 2007 Arizona law forcing employers to check workers' legal status, which the high court upheld this year.

How the justices rule on the case, which is expected to be heard in the spring, could among other things affect the temporary injunctions issued by lower federal courts blocking the stricter provisions of SB 1070-inspired laws in states like Georgia, Alabama and South Carolina. These include, for example, an especially divisive portion of Alabama's new anti-illegal immigration law that would have public schools check the immigration status of students.

In Chamber of Commerce v. Whiting, only eight of the nine justices considered the case, with Justice Elena Kagan recusing herself; Kagan has also recused herself from the SB 1070 case, meaning the court could be split. Johnson explains the details:

M-A: The Supreme Court has decided to review Arizona’s appeal on the SB 1070 case. Just what will the court be weighing?

Johnson: Technically, the court will be reviewing the Ninth Circuit's affirmance of a district court injunction barring four sections of SB 1070 from going into effect.

As a practical matter, the court will be reviewing the same federal preemption arguments that were raised in the district court and Ninth Circuit.

M-A: How could a decision affect the temporary injunctions blocking of portions of similar state laws, such as in Alabama and Georgia?

Johnson: Depending on whether there is an opinion (which there would not be if the court was equally divided 4-4), the opinion could have a big or small impact on the other state immigration law cases, depending on how broad or narrow the court's opinion was.

Even a narrow opinion, however, would, I think, have an impact on the other state laws that resemble in important ways Arizona's (including Alabama, Georgia, and South Carolina's).

M-A: Based on lower court decisions, the previous SCOTUS decision on the Arizona E-Verify law and other precedents, which way do you think the court might go?

Johnson: Hard to say. If the justices line up as in Whiting, it could be 5-3 for reversal (of the lower court's ruling to block parts of the law). If Justice Kennedy changes his mind, it could be 4-4.

In that event, the Ninth Circuit's decision affirming the injunction of four provisions of SB 1070 will remain in effect. If other justices who upheld the Arizona law think that SB 1070 is a very different law, then the majority for affirmance could grow.

M-A: So to make clear, the court is not weighing the constitutionality of SB 1070, correct? At what stage is the federal constitutional challenge to the state law?

Johnson: The court will decide whether, at this stage of the litigation, SB 1070 is preempted by federal law. This is a constitutional law question under the supremacy clause that makes federal law the supreme law of the land. Thus, a constitutional question is at the core of this case. The court could duck it but probably, in my view, won't.


In July of last year, as SB 1070 was set to take effect, Johnson provided his take on the federal government's constitutional challenge to the Arizona law in another Multi-American Q&A.
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