When Paul Clement walks into the U.S. Supreme Court on Wednesday he’s going to try to convince at least five justices that Arizona has an inherent right to enforce federal immigration laws.
He needs them to believe that to get them to overturn lower court decisions which have so far concluded that key provisions of SB 1070, the state’s 2010 comprehensive measure aimed at illegal immigrants, are preempted by federal law.
But three law professors asked about the issue say Clement could have an uphill fight.
Paul Bender from Arizona State University College of Law said that, everything else being equal, the conservative justices would tend to side with the state in any legal battle. And the liberal branch of the court is short one of its players, with Elena Kagan having recused herself since she was federal solicitor general in the Obama administration which is suing the state.
But this isn’t a normal case.
“This is not a question of states’ rights versus individual rights,” said Gabriel “Jack” Chin of the University of California at Davis.
“This is a conflict between states’ rights and traditional federal authority,” he said. “There, it’s not clear the traditional conservatives are interested in undermining federal authority in foreign policy and national security.”
And that’s precisely what Solicitor General Donald Verrilli Jr. has argued, with the Obama administration even presenting arguments from foreign governments on how Arizona’s law interferes with their relations with the United States.
That also differentiates this case markedly from the legal arguments over the federal Affordable Care Act, one that, curiously enough, pitted the same two attorneys arguing this case against each other.
SB 1070 is designed to give police more power to detain and arrest illegal immigrants. But a federal judge blocked the state from implementing several sections, a decision upheld by the 9th U.S. Circuit Court of Appeals.
Robert Smith of Suffolk University Law School said it’s important to remember that this case is not about whether the law results in discrimination. That issue is not before the court.
“The issue is preemption,” he said.
The state is arguing that nothing in SB 1070 conflicts with federal laws. In fact, the claim is that the state’s just helping the federal government to enforce its laws.
Smith said Congress did anticipate state-federal cooperation. But he said federal law spells out that is supposed to be in the context of an actual agreement between the federal government and state or local agencies, known as 287(g) agreements.
“When you reach those cooperative agreements, you agree that the attorney general and the Department of Justice are monitoring and supervising what you do,” he said. “Here, Arizona is seeking a much more autonomous role.”
Chin said it’s even more basic than that.
“One of the ways you can tell when you’re not cooperating is when the attorney general sues you to get you to stop doing what you’re doing,” he said.
Bender said there’s a good reason for that federal oversight.
“Otherwise, some foreign dignitary comes over here, who knows what some crazy sheriff in Oklahoma might do,” he said.
“They might say, ‘Where’s your papers?’ and they don’t happen to have them, and get detained for a few hours until somebody gets them out,” Bender said. “That can be a foreign policy disaster.”
Clement also is arguing that Arizona has the inherent power to help enforce federal law. But Chin said that ignores that federal officials have broad discretion in how to enforce its laws — and that Arizona might have a different and conflicting idea.
“You may be redoing your kitchen but you probably want to do it your way,” he said. “You probably wouldn’t be happy if I was there in your home with a paint brush and a hammer.”
Bender said the argument holds no water.
“Suppose the state starting charging people with cheating on their federal income tax,” he said, saying it was just helping the federal government enforce its laws.
“That’s absurd,” Bender said. “Nobody would think they could do that. And the reason is the IRS has to make the decision about how to enforce the laws.”
Smith said one of Verrilli’s best weapons in arguing that Arizona is enacting its own immigration scheme is going to be the Arizona law itself.
Its statement of purpose says SB 1070 is designed “to make attrition through enforcement the public policy of all state and local governments in Arizona.” It also says the provisions “are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.”
In essence, Smith said, that is a statement that Arizona disagrees with the federal approach and federal policies, pointing up the direct conflict.
Still, the law professors say Clement does have some arguments.
One, said Chin, would be asking the court to overrule the concept that immigration is an exclusive federal power.
“A lot of people ... scholars, activists, on the conservative side, say that is how the case should be resolved, (that) states have some independent power to regulate non-citizens who come through their territory,” he said. “It’s not out of the question.”
But Chin, who used to teach at the University of Arizona, called it a “100 to one shot.”
Along the same lines, Smith said Clement could try to distinguish between regulating immigration and regulating immigrants.
“States can’t set the ground rules for immigration,” he said. “The states can’t set policy.”
But in arguing they’re just regulating immigrants — especially those who are not legally present in the country, Smith said Arizona could argue it is not interfering with the system of immigration.
While Kagan is not hearing the case, her absence also creates the possibility of a 4-4 tie. And, in that case, the Obama administration wins, at least for the time being because it leaves intact the injunction issued by U.S. District Court Judge Susan Bolton and upheld by the 9th Circuit. That does, however, leave open the possibility the high court will have to look at the issue again after Bolton has a full-blown trial on the merits of the law, something she has held off doing until the Supreme Court issues its decision, likely in June.
Bender said while the justices are looking at the legal issues, they are not immune to what is going on around them. That includes a hearing the day before at the Senate Judiciary Committee, where one of the scheduled witnesses is former state Sen. Russell Pearce, the sponsor of the law.
“They read the papers,” Bender said of the justices.
“If Russell Pearce should look like a crazy man in that hearing and come across as anti-immigrant, anti-federal government, a loose cannon, that would hurt the state,” he said.
Dale Whiting posted at 2:16 pm on Sat, Apr 21, 2012.
Leon,
I know you are passionate about SB1070 and illegal immigration. But take a step back and reflect on that this article says, divorsing yourself from your passions for the moment. Like it or not, SB1070 is toast, a 100 to 1 shot. It's not really about law enforcement. It's about federal pre-emption. The Feds get to decide if and how to enforce federal laws. And the states may not pass laws stepping to Federal toes. Immigration law is 100% Federal law and 0% State law. Tom Horne knows this but he's pandering to the likes of you. Jan Brewer may not know this but she knows to pander, too.
So if you want stronger Federal enforcement, you need to elect those who will enforce those laws to suit you.
Now, understand this. Since this is a minor campain issue for 2012, there will be some rhetoric spilled on the topic of immigration law enforcement. That Mesa nut case, Wil Cardon, is spilling a heck of a lot of it. But Senators do not make law enforcement decisions. Cardon is courting your support when, as a Senator, he would have nothting whatsoever to do with making enforcement decisions. That decision making is 100% with the executive branch. So the only way you will get laws enforced your way is to run for president yourself and then get elected. Not much chance of that. And don't make the mistake of believing that Romney will serve your desires. I think you already know this!
samkat posted at 8:21 pm on Sat, Apr 21, 2012.
There are other ways Arizona skin the cat. We still have control over our state tax laws and their enforcement. The feds do not have control over that domain. All the state has to do is to audit employers to ensure they and their employees are completing and submitting the proper tax forms as well as the proper tax deductions. Spot audits can be performed on employee social security numbers. When irregularities are noted, the employer and the employee can be charged with tax evasion, perjury and a host of other charges. Once the felony conviction is in place, the feds have to take some action. There are other rights the states have that can accomplish the same thing. Once the employers get the message, the exodus will begin.
Rational Human posted at 3:19 pm on Sun, Apr 22, 2012.
A pro-Arizona decision would be a legal and political setback for Obama, who has criticized the state's law and vowed to push for immigration legislation (amnesty) if re-elected on November 6. A decision against Arizona would deal a blow to Romney, who has said the government should drop its challenge to the law.
Americans generally support immigration laws like Arizona's and are ambivalent about the federal and state roles at the core of the case, a new Reuters / Ipsos opinion poll found. About 70 percent of those surveyed favored state laws that let police check a person's immigration status and make it a crime for an illegal immigrant to work in the United States; about 30 percent opposed such measures.
A decision favoring illegal migrants would be a major blow to America and Americans of all races. If they rule against Arizona as Mr conservative Dale hopes, we might as well just give up and open the borders completely and allow the New World Order to take over. Goodbye US sovereignty, hello United Nations. Some will try to say that federal preemptive rules, but that is pure horse pucky. No where in the constitution does it say that a state cannot enforce federal laws. Arizona law does not attempt to regulate immigration, which is a role that belongs exclusively to the federal government. All Arizona law does is to give our cops the right and tools to help enforce immigration laws, and the Supreme Court will see this and rule SB1070 as constitutional. It is not an invitation or direction to police to engage in racial profiling as some will argue as the law forbids race to be considered when determining if a person is here legally whereas the federal law does allow race to be considered. I really doubt the majority of conservative judges will just throw the doors open to this invasion.
Rational Human posted at 3:24 pm on Sun, Apr 22, 2012.
Hooray for the Obamanation! Here's the Obamanation's new jobs initiative.
While the president has been pretending to urge on “insourcing,” the government has been quietly sending money to the Philippines to train foreign workers for jobs in English-speaking call centers.
Imagine that, our own federal government doing that.
According to New York Democratic Rep. Tim Bishop and North Carolina Republican Rep. Walter Jones, this is unacceptable and “shocking.”
The pair are calling on the United States Agency for International Development (USAID) to immediately suspend what is known as the Job Enabling English Proficiency (JEEP) program.
Read more: http://dailycaller.com/2012/04/20/usaid-training-foreign-workers-for-english-speaking-jobs/#ixzz1soJhrG1c
Rational Human posted at 3:32 pm on Sun, Apr 22, 2012.
Unfortunately samkat, many illegal migrants are staying and working under the table. Not only do they not pay taxes but they send large remittances back to their native country and continue to milk social services dry. Anyone who thinks any federal government will ever enforce the immigration laws already on the books is dreaming (Dale). It's time for states to take back the power that the feds have illegally taken from us. A bigger federal government is a less efficient government. Government always works best at the local level. Look at any country where they have a all powerful centralized government and I'll show you a failed socialist dream (Dale)
Masterrogue666 posted at 10:20 pm on Sun, Apr 22, 2012.
Sound's like "Dale's" God has been busy stabbing the American people in the back...
Accuracy posted at 11:23 am on Mon, Apr 23, 2012.
Just like Arizona employer-sanctions HB 2162 law (which penalizes businesses that knowingly hire “illegal immigrants”) that the U.S. Supreme Court concluded is constitutional. The High Court will hear arguments Wednesday in the Obama's challenge of Arizona’s SB 1070 immigration law (also known as the Support Our Law Enforcement and Safe Neighborhoods Act).
The Obama administration has challenged Arizona on the grounds that its immigration law was a flagrant state overreach – even though S.B. 1070 does not impose its own substantive immigration standards, but simply uses state resources to enforce federal rules.
Arizona is arguing that it is not exceeding or violating federal law, simply helping enforce it. And the effects of Arizona’s SB 1070 immigration law have rippled across the nation thus far.
The High Court’s decision will have nationwide implications.
Several other states, including Utah, Alabama, Georgia, South Carolina, and Indiana, have followed Arizona's lead in implementing their own individually tailored immigration laws. “HB497 in Utah”, which is an Arizona-style immigration enforcement law stands in direct contrast to the “Utah Compact”.
Rational Human posted at 1:38 pm on Mon, Apr 23, 2012.
Wasn't all that long ago that Dale and his minions were saying there was absolutely no chance of the US Supreme Court choosing to even hear this case, and now he's saying it doesn't stand a 100-1 chance of winning? If that were even remotely true they wouldn't have bothered with it. This is such an important juncture in America's future as a sovereign country that the Supreme Court would be foolish to ignore it's profound implications and choose to open the flood gates like so many of Dale's progressive socialist buddies hope for. They wish the same for America as any of the terrorist groups around the world hope for. They hope for the destruction of The United States of America and the creation of the good old United Socialist States America. After they take down America and move to create the North American Union they will well on their way to taking over the world under one huge centralized communist dictatorship.