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Three things to know as Supreme Court prepares to issue SB 1070 ruling this month

The crowd outside the U.S. Supreme Court in Washington, D.C. as the court heard arguments on Arizona's SB 1070, April 25, 2012
The crowd outside the U.S. Supreme Court in Washington, D.C. as the court heard arguments on Arizona's SB 1070, April 25, 2012
Photo by Kitty Felde/KPCC

There are three weeks left in the U.S. Supreme Court's current term, and it's during this time that the high court is to issue its ruling on Arizona's SB 1070 anti-illegal immigration law. It's been one of the court's most closely-watched cases this year, with the potential to have a broad effect on the degree to which states can pursue their own immigration laws.

What exactly will the court be ruling on, what is at stake, and what might the outcome be? Here are some key bullet points as we await a ruling on Arizona v. United States:

What the justices are weighing

In a nutshell, after hearing oral arguments in April, the Supreme Court justices are deciding on whether provisions of Arizona’s state law are in conflict with federal immigration law. This is what the federal government asserted in its legal challenge filed in July 2010, shortly before SB 1070 partly took effect. That month, a federal judge in Phoenix issued a ruling temporarily blocking four of the measure’s most controversial provisions.

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 took the case. From a guide to Arizona v. United States put together by an attorney with the American Immigration Council, here are the four provisions that the Supreme Court is considering:

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) are considering 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.

What is at stake

What precedent is set by the high court's ruling would have the most immediate effect on states that have recently enacted anti-illegal immigration laws, styled after SB 1070. More broadly, the ruling could either encourage more state immigration laws, or put a halt to the trend that so far has led to five states enacting SB 1070-style measures since the passage of the Arizona law.

While similar laws have been floated in numerous states, those in which they have taken root include Georgia, Alabama, South Carolina, Utah and Indiana, all of which have enacted their own versions of SB 1070. AlabamaSouth Carolina and Utah have also been sued by the federal government on pre-emption grounds; others have been sued by civil rights groups.

More context from this recent post:

In some cases, lower federal court judges have issued preliminary injunctions – just as was done in Arizona – blocking some of the more controversial parts of these laws. For example, a judge in October blocked a provision of the Alabama law that required public schools to check student’s immigration status, initially prompting a rash of school absences. The decision by the Supreme Could could have a bearing on these lower court decisions as well; if the partial block of the Arizona law is lifted, it could also affect the injunctions blocking portions of the other state laws as the federal pre-emption challenges and other lawsuits wind their way through the courts.

The preliminary injunctions issued have varied from state to state. For example, a September ruling by a federal judge in Birmingham temporarily blocked a provision that would bar undocumented immigrants from state universities, but still allowed police to question people they suspect of being in the country illegally. (The controversial public schools provision was blocked the following month, after the federal government appealed.) Last summer in Georgia, where civil rights groups have filed suit against the state, a federal judge temporarily blocked the provision allowing police to check for immigration status.

Beyond the effect on the states, what the court decides could further influence the tone of the immigration debate in general, as SB 1070 has. Since its passage in 2010, the Arizona law has inspired not only copycat laws, but a more stringent enforcement-related legislative climate that has included attempts in some states to end birthright citizenship, among other things.

The anticipated outcome

Based on the oral arguments in April, there's been speculation that Arizona might prevail on some provisions. There was a line of questioning that set this tone during the April 25 hearing; here's an excerpt from the transcript of an exchange between Justices Sonia Sotomayor and Antonin Scalia, and U.S. Solicitor General Donald Verrilli, representing the Obama administration:

JUSTICE SOTOMAYOR: General, could you answer Justice Scalia’s earlier question to your adversary? He asked whether it would be the Government’s position that Arizona doesn’t have the power to exclude or remove — to exclude from its borders a person who’s here illegally.

GENERAL VERRILLI: That is our position, Your Honor. It is our position because the Constitution vests exclusive authority over immigration matters with the national government.

JUSTICE SCALIA: All that means, it gives authority over naturalization, which we’ve expanded to immigration. But all that means is that the Government can set forth the rules concerning who belongs in this country. But if, in fact, somebody who does not belong in this country is in Arizona, Arizona has no power? What does sovereignty mean if it does not include the ability to defend your borders?

After the hearing two legal experts, one siding with Arizona and the other with the federal government, provided their own prognoses to Multi-American. Both indicated that while the judges didn't seem altogether opposed to the controversial "reasonable suspicion" provision, for example, another provision targeting unauthorized immigrants who seek work might not make it.

From the interviews with constitutional law experts John C. Eastman, who favors SB 1070, and Elizabeth B. Wydra, who doesn't:

Eastman:  I think the key provisions, the most controversial, are going to be upheld and they may be upheld by a significant majority. I think the justices rightly recognized that Arizona was not intruding on federal authority here. And the big point on that issue came when the Solicitor General had to concede that law enforcement officers in Arizona could ask about people’s legal immigration status even before this law passed. Once you concede that, the fight becomes simply whether the state can direct its officers how to exercise their discretion.  And that is clearly permissible.

The provision of the Arizona law imposing sanctions on employees for working while illegally present looks like it might fall. The issue there is a bit complicated. Under the Supreme Court’s existing preemption doctrine, if the federal statute says that states can’t impose any criminal sanctions on the employees, then state laws that tried to do that would be expressly preempted. Here, the federal law has penalties against the employer, but does not provide for penalties against the employee.

Wydra: It did seem like several of the justices, and perhaps a a majority of the justices, did not see a preemption problem. That is, they did not see a conflict with SB 1070’s “show us your papers” provision. But there also seemed to be a majority of the justices who were very concerned about the other provisions of the law, which include state criminal sanctions for people who don’t carry their immigration documents and unauthorized immigrants who seek work in Arizona.

The questioning really did focus on the provision that the public is certainly most concerned about, which is the provision that authorizes law enforcement officers to ask a person for their immigration papers if there is “reasonable suspicion” that the person is in the country illegally.

Also worth noting is that the Supreme Court ruled earlier this year in favor of a previous Arizona anti-illegal immigration law, one mandating employers to use a federal program called E-Verify to check workers’s immigration status and punishing those who don’t comply.

All this said, the justices will make the final call. Not that their ruling will put SB 1070 to rest: While this decision will address the federal preemption question, there are still other pending legal challenges that explicitly address civil rights and racial profiling concerns. This is something that the case in the Supreme Court does not get into, a different set of arguments altogether.