We'll have to wait until next week for a U.S. Supreme Court ruling on SB 1070, Arizona's controversial 2010 anti-illegal immigration law. The high court justices issued opinions today on four cases heard this year, but not on the most highly anticipated or contentious ones, which include not only SB 1070 but the fate of the Affordable Care Act.
More opinions are expected next week, and a ruling on Arizona v. United States could come as early as Monday. In the meantime, some background from previous posts as we wait:
What the justices are weighing
The justices are deciding on whether provisions of SB 1070 are in conflict with federal immigration law, as the Obama administration 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 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.
What is at stake
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.
States in which SB 1070-style measures have been enacted include Georgia, Alabama, South Carolina, Utah and Indiana. Alabama, South Carolina and Utah have also been sued by the federal government on pre-emption grounds; others have been sued by civil rights groups. In some of these cases, judges have put off decisions until the Supreme Court issues its opinion.
More broadly, SB 1070 has altered the discourse on immigration, shifting the climate toward one more heavily reliant on enforcement. Aside from the five states above, a growing number of other states have weighed their own immigration enforcement-related measures since 2010, some with more success than others. Among these attempts have been state bills that aimed to do away with birthright citizenship, including a few unsuccessful ones introduced last year in Arizona.
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?
In a recent Q&A on this site, two constitutional law experts provided a prognosis on the possible outcome. Both indicated that while the judges didn’t seem altogether opposed to the controversial “reasonable suspicion” provision, for example, the provision targeting unauthorized immigrants who seek work might not make it.
It's important to note that whichever way the court rules, the controversy over SB 1070 won't be put to rest. This particular case addresses the federal preemption question, but there are still other pending challenges that address civil rights and racial profiling concerns, something this case does not go into. So either way, there will be more to come on SB 1070.