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Understanding the SB 1070 case: What the Supreme Court justices will decide on

The crowd outside the U.S. Supreme Court building this morning in Washington, D.C., April 25, 2012
The crowd outside the U.S. Supreme Court building this morning in Washington, D.C., April 25, 2012 Photo by Kitty Felde/KPCC

The U.S. Supreme Court heard oral arguments this morning on Arizona's controversial and precedent-setting SB 1070. A decision isn't expected until June, but how the justices decide will ultimately determine how far states can go in enforcing their own immigration laws. The decision will have far-reaching implications in that since SB 1070 became law in 2010, five other states have enacted similarly stringent immigration laws, and dozens have considered them.

Just what will the justices be weighing? In a nutshell, they'll be deciding whether provisions of Arizona's state law are in conflict with federal immigration law, as the government asserted in its legal challenge filed in July 2010, shortly before SB 1070 partly took effect.

On the eve of the law's implementation that year, a federal judge in Phoenix issued a ruling based on that challenge, blocking four of the Arizona measure's most controversial provisions from taking effect. That decision was upheld later by a federal appeals court. Arizona countered by petitioning the Supreme Court, challenging the two lower courts' decisions; last December, the high court agreed to take the case.

From a guide to Arizona v. United States put together by a staff attorney with the American Immigration Council, here are the four provisions that the Supreme Court will weigh, interpreted:

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. (Note: “reasonable suspicion” means having a valid reason to suspect unlawful activity, but not enough evidence to make an arrest.) 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. (Note: “probable cause” means having enough evidence of unlawful activity to obtain a warrant or make an arrest.) 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.


Eight of the nine justices (with Justice Elena Kagan recused) will consider whether these provisions are preempted by federal law, meaning they are in conflict with federal law because federal law takes precedence as the law of the land. In its argument, the federal government asserts that immigration enforcement is its sole authority, and therefore there's a conflict with each provision in question. Arizona's argument is the opposite: that there is no conflict and that furthermore, the federal government is not doing the job.

In today's SCOTUSblog, attorney and blog editor Amy Howe explains the case with details on Arizona's position:

In its brief to the Supreme Court, Arizona emphasizes two themes. First, when the federal government has enforced its immigration laws at all, it has at best done so unevenly, resulting in a massive influx of illegal immigration.  Arizona has been especially hard hit by illegal immigration, which has sharply increased the state’s crime rate, required the state to spend hundreds of millions of dollars each year on social services for illegal immigrants, and reduced wages for the Arizona residents who are authorized to work in this country.

Because the federal government has failed to act to address this crisis, Arizona explained, it enacted S.B. 1070.  This goes to the state’s second theme:  its efforts to regulate illegal immigration within its borders do not conflict with federal law.  In fact, it’s just the opposite.  With Section 2(B) and Section 6, for example, which require police officers to verify the immigration status of arrestees and authorize warrantless arrests when police believe that someone has committed a crime that could get him deported, all that the state is trying to do is enforce existing federal laws, which federal immigration laws specifically authorize it to do.


As the arguments wrapped up this morning, the New York Times reported that based on their questions, the justices appeared sympathetic toward's Arizona's arguments, at least regarding the provision involving law enforcement checking immigration status. Shortly after the arguments ended, attorney Tom Goldstein posted this report in the SCOTUSblog with some speculation on the possible outcome:
Most of the time was spent on the provisions permitting the state to inquire about immigration status. Those provisions are likely to be upheld because the federal government can always decline to enforce immigration laws even if they learn about someone with an illegal status. The Court may be unanimous on that question.

Very little time was spent on the provisions making it a state crime to violate your federal immigration status. But I think there will be at least were at least four votes to strike those provisions down (at least the failure to register), meaning the Ninth Circuit’s decision will be upheld in that respect. The Court is also likely to leave open the question whether as applied challenges can be brought against all the provisions of the statute.


Unless there's a 4-4 split among the justices, a decision by the court isn't likely until June.

Meanwhile, protesters descended on the Supreme Court building in Washington, D.C. this morning. Events related to SB 1070 are planned in other cities, including in Phoenix.

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