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Against SB 1070
To what extent can a state enforce immigration policy, traditionally the province of the federal government? Wednesday morning, the Supreme Court of the United States heard oral argument (PDF) in Arizona v. United States, reviewing the decision of the Ninth Circuit finding four provisions of SB 1070 unconstitutional for being implicitly preempted by federal law in the field, blocking four provisions from being enforced:
  • Section 3, creating a state law crime of being unlawfully present in the United States and failing to register with the federal government;
  • Section 5, creating a state law crime of seeking work or working while not authorized to do so;
  • Section 2, which requires state and local officers to verify the citizenship status of persons arrested, stopped or detained; and
  • Section 6, which authorizes warrantless arrest of non-citizens believed to be removable.
So does America have one immigration policy, or can it have over 50 more? As former Secretary of State Madeline Albright and a bipartisan group of former foreign policy officials explained in an amicus brief:
Immigration policy has been part and parcel of U.S. foreign relations since the country’s founding. As this Court has recognized, the text, history, and structure of the Constitution require that the U.S. government speak with one voice on all issues of international relations. Consequently, the exclusivity of the national government’s power over foreign policy matters such as trade or war applies with full force to immigration policy, including the regulation of aliens crossing or within U.S. borders.

[...] Arizona’s S.B. 1070 illustrates the ways in which state immigration laws can interfere with and thereby harm the Nation’s foreign relations. It inherently undermines the exclusivity and uniformity of federal foreign relations power, threatens negative consequences for U.S. relations with other countries, and risks retaliation to U.S. citizens abroad.

Justice Kagan has recused herself from this matter; if the Court ties 4-4, the decision below blocking SB 1070's enforcement will be upheld. And if you want the argument in a nutshell, here it goes from Solicitor General Donald Verrilli's argument against SB 1070:
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?

GENERAL VERRILLI: Your Honor, the Framers vested in the national government the authority over immigration because they understood that the way this nation treats citizens of other countries is a vital aspect of our foreign relations. The national government, and not an individual State --

JUSTICE SCALIA: But it's still up to the national government. Arizona is not trying to kick out anybody that the Federal government has not already said do not belong here. And the Constitution provides -- even -- even with respect to the Commerce Clause -- "No State shall without the consent of Congress lay any imposts or duties on imports or exports except," it says, "what may be absolutely necessary for executing its inspection laws."

The Constitution recognizes that there is such a thing as State borders and the States can policetheir borders, even to the point of inspecting incoming shipments to exclude diseased material.

GENERAL VERRILLI: But they cannot do what Arizona is seeking to do here, Your Honor, which is to elevate one consideration above all others. Arizona is pursuing a policy that maximizes the apprehension of unlawfully present aliens so they can be jailed as criminals in Arizona unless the Federal Government agrees to direct its enforcement resources to remove the people that Arizona has identified.

So what's going to happen here? This is a facial challenge to the law—i.e., "under no circumstances can it be constitutionally enforced," as opposed to an as-applied challenge ("unconstitutional as to these circumstances"). As such, the surely-in-need-of-a-vacation Paul Clement, arguing for Arizona, called for a wait-and-see attitude towards the law's enforcement. He urged the Court to trust Arizona to enforce it fairly, and view SB 1070 as a well-meaning way to assist the federal government in doing its job:

JUSTICE BREYER: [...] Example one is the person is arrested. Now, it says any person who is arrested shall have the person's immigration status determined before the person is released. So I wonder if they have arrested citizen, he's Hispanic-looking, he was jogging, he has backpack, he has water in it and Pedialyte, so they think, oh, maybe this is an illegal person. It happens he's a citizen of New Mexico, and so the driver's license doesn't work.

And now they put him in jail. And are you -- can you represent to us -- I don't know if you can or not -- can you represent to us he will not stay in jail in detention for a significantly longer period of time than he would have stayed in the absence of section 2(B)? Do you want to represent that or not?

MR. CLEMENT: I don't want to represent that --

JUSTICE BREYER: All right. Now, if you cannot represent that -- and I'm not surprised you don't want to -- I mean, I don't know --

MR. CLEMENT: Sure, sure. But what I can represent --


MR. CLEMENT: -- is that he's not going to be detained any longer than the Fourth Amendment allows.

Will it work?  Dahlia Lithwick was there:
Interestingly, it’s Sotomayor and Justice Samuel Alito who seem most concerned about what happens when U.S. citizens get swept up in the Arizona dragnet. Alito questions Clement about a hypothetical U.S. citizen, pulled over by police for driving 10 miles over the speed limit and suspected of being an illegal alien. “How would that work out? If you do the records check, you're not going to get anything back, right, because the person is a citizen.” Sotomayor even seems to tacitly acknowledge that she herself is the justice most likely to be arrested under the law, noting, “Today, if you use the names Sonya Sotomayor, they would probably figure out I was a citizen,” but that there is no U.S. citizen database. ...

Two other provisions at issue today make it a state crime to be in Arizona without legal immigration papers and criminalize any attempt by undocumented aliens to work or attempt to work in the state.  They both appear to raise red flags for the justices, especially Roberts, Kennedy, and Alito, who don’t seem persuaded by Clement’s argument that Arizona’s zeal in punishing employees isn’t in conflict with Congress’ decision to punish employers. That raises the possibility that the decision here won’t be a neat one, with the court splitting on which parts of the statute survive and which must go.

Originally posted to Adam B on Thu Apr 26, 2012 at 08:28 AM PDT.

Also republished by Baja Arizona Kossacks and Daily Kos.

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Comment Preferences

    •  Thanks for taking the time. (3+ / 0-)
      Recommended by:
      True North, dannyinla, Larsstephens

      IANAL, but I think you pinpointed something important to keep in mind:  This won't be a neatly tied up parcel of a decision.  All sides will not be satisfied.  I expect much whooping and hollering in glee initially and then silence upon analysis.  Also - take some motion sickness pills ahead of the spinning to come.

      Just give me a good patch of dirt and I'll show you growth and well-being!

      by kfred on Thu Apr 26, 2012 at 08:52:13 AM PDT

      [ Parent ]

  •  The NPR piece on this yesterday sounded very (0+ / 0-)

    bad. They made several comments to the effect that the court seemed hostile to the administration's lawyers. They even put Jan "Wag the Finger" Brewer on beaming about how confident she was of victory. Though given her track record on reality maybe that's a good thing?

    All my sig lines are hand-crafted by demented elves living in my skull.

    by ontheleftcoast on Thu Apr 26, 2012 at 08:40:09 AM PDT

  •'s the solution! (2+ / 0-)
    Recommended by:
    ontheleftcoast, psilocynic

    The Justices handed it right to them on a silver platter.

    Time to create a US Citizen Database with an accompanying US Citizen Internal Passport.  

    It will be easier for them to round us all up and take us to Glenn Beck's FEMA camps.

    •  You know, this is one time the whack-a-doodle (1+ / 0-)
      Recommended by:

      fundies would be a boon to freedom. There is no way they'd put up with a "mark of the beast" type program from the government. Especially with someone in theWhitehouse that 30-40% of them think is literally the anti-Christ.

      All my sig lines are hand-crafted by demented elves living in my skull.

      by ontheleftcoast on Thu Apr 26, 2012 at 08:50:24 AM PDT

      [ Parent ]

  •  Originalism, intent, and conservative activism (5+ / 0-)

    Wouldn't the Roberts Court have to ignore originalism and the intent of the Founding Fathers to find parts of the law constitutional? There is no way that in 1791 that politicians envisioned we would have so many undocumented people. They never would have invisioned a situation where anyone besides the federal government would have jurisdiction over immigration status.

    The reality is that this bill was crafted ALEC-style to benefit the for profit prison industry. There is a direct line between Jan Brewer's top aides and the lobbyists for SB 1070.

    •  Dirk - I don't think so (0+ / 0-)

      First, I think it is always dangerous to try and predict outcomes from oral argument. However, from listening to the audio, and reading the analysis at, it seems one part of the law may be upheld by the Court. Section 2 which allows for the check of the residency status of someone detained by police looks like it could be upheld.

      "let's talk about that"

      by VClib on Thu Apr 26, 2012 at 09:06:59 AM PDT

      [ Parent ]

      •  with one exception (2+ / 0-)
        Recommended by:
        notdarkyet, Larsstephens

        Justice Scalia will vote to uphold the bill.  Not simply because he asked tough questions to the Solicitor General but because he was using the rhetoric of a Red State commenter, immigrants are like bank robbers, "protect the borders," "please Mexico," etc.

        My read of his comments is that a state can do more than the federal government wants, but not less.  Federalism only works in one direction, you see.  

        John Roberts also clerked for Rehnquist, who personally saw to it that Latinos who were citizens couldn't vote in Arizona, so there's that.  And Rehnquist was the intellectual leader of the "New Federalism," fresh off of passing off his racism as the great Robert Jackson's in the infamous Brown v. Board bench memo.  

        The study of law was certainly a strange discipline. -- Yukio Mishima

        by Loge on Thu Apr 26, 2012 at 09:18:35 AM PDT

        [ Parent ]

  •  Sotomayor seemed to give other justices certain (0+ / 0-)

    cover yesterday by seeming to side with them on issues.  To not make it seem that the justices were being racial in their decision making etc.  

    I wonder if the cons have the votes if they'll try to get Sotomayor on board with their majority decision for the same reason.  

  •  It's a more interesting issues than we'd like (0+ / 0-)

    What if the federal government totally stopped border enforcement--because it had no money, because it valued friendly relations with Mexico over everything else, whatever the reason.  Would Arizona have the right to step in, or would it have to accept the federal decision to have no border enforcement?

    What we actually have is arguably an incremental version of this: border enforcement, defined very crudely as keeping out anyone without an official right to come in, is a mixed bag.  Is there a level below which Arizona has any rights to take on a federal responsibility, or does the federal nature of border enforcement (and Arizona's practical inability to make reliable determinations about immigration status) trump everything?

    I'm trying to think of some equivalent issue--something federal where states have a recognized prerogative to step in, not to supplement what the feds do (e.g. veterans affairs) but to take on the direct federal role including the punitive stuff.  I can't think of anything--the NYPD controversially spied on Muslim students in other states, but it hasn't launched drone attacks on Pakistan.

    Romney '12: The Power of Crass Commands You!

    by Rich in PA on Thu Apr 26, 2012 at 09:54:10 AM PDT

    •  You don't have to really look any further than (0+ / 0-)

      immigration law. From my read of the transcript of the proceedings, I think most of the stuff in 1070 is already being done in Arizona and elsewhere, except it's on an ad hoc, discretionary basis. The essence of what 1070 attempts to do is to make those ad hoc, discretionary practices required.

  •  Thanks for spelling this out. (0+ / 0-)

    "Such is the irresistible nature of truth that all it asks, and all it wants, is the liberty of appearing." - Thomas Paine

    by blueoregon on Thu Apr 26, 2012 at 09:54:25 AM PDT

  •  Here is coverage at DN with video footage (0+ / 0-)

    of what Brewer said yesterday in front of the Supreme Court (at TC 45:44 in the video) and some discussion with

    Seth Wessler is an award-winning reporter for and senior researcher at the Applied Research Center.


    Randy Parraz President of Citizens for a Better Arizona. The group led a successful recall effort against state senator Russell Pearce, the leading lawmaker behind the anti-immigrant bill, SB 1070.

    Obama Administration Challenges Arizona Anit-Immigrant Law While Overseeing Unprecedented Mass Deportations

  •  Justice Sotomayor's statement continues (2+ / 0-)
    Recommended by:
    elmo, a2nite

    to puzzle me:

    "Today, if you use the names Sonia Sotomayor, they would probably figure out I was a citizen. But let's assume it's John Doe, who lives in Grand Rapids. ... Is there a citizen database?"
    Does she mean, because she is a Justice of the U.S. Supreme Court everyone would assume a person with her name is a citizen?  Seems to me another person w/her name who happened to be in AZ might not be assumed to be a U.S. citizen.  
  •  I think it will be a split decision. (0+ / 0-)

    Some form of "papers please" will stand.  Most likely sections 3 and 5, and part of 6 will be thrown out.

    "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." --M. L. King "You can't fix stupid" --Ron White -6.00, -5.18

    by zenbassoon on Thu Apr 26, 2012 at 10:49:14 AM PDT

  •  Can Arizona really afford (0+ / 0-)

    to imprison all the undocumented immigrants it would be responsible for if it really enforced this law? Bet they'd have to raise...gasp...taxes to pay for it.

    It strikes me that this is one of those laws passed for political, rather than policy reasons, with the consequences not really thought through very well.

    •  Ahem. Ask ALEC. (5+ / 0-)
      Recommended by:
      a2nite, Musial, elmo, Larsstephens, ramara

      NPR, 10-28-10:

      NPR spent the past several months analyzing hundreds of pages of campaign finance reports, lobbying documents and corporate records. What they show is a quiet, behind-the-scenes effort to help draft and pass Arizona Senate Bill 1070 by an industry that stands to benefit from it: the private prison industry.

      The law could send hundreds of thousands of illegal immigrants to prison in a way never done before. And it could mean hundreds of millions of dollars in profits to private prison companies responsible for housing them....

      In May, The Geo Group had a conference call with investors. When asked about the bill, company executives made light of it, asking, "Did they have some legislation on immigration?"

      After company officials laughed, the company's president, Wayne Calabrese, cut in.

      "This is Wayne," he said. "I can only believe the opportunities at the federal level are going to continue apace as a result of what's happening. Those people coming across the border and getting caught are going to have to be detained and that for me, at least I think, there's going to be enhanced opportunities for what we do."

      Opportunities that prison companies helped create.

      •  I was thinking about this today (3+ / 0-)

        The Obama Administration's clear priority is detaining and deporting undocumented immigrants who are committing crimes other than simple immigration offenses. If Arizona wants to round up a bunch of additional people, I suppose the feds could just decline to take transfer, leaving them on the hands of Arizona, which leaves them to pay for it, too.

        •  CCA-Eloy wants them. (1+ / 0-)
          Recommended by:

          Then AZ will sue for compensation and damages.

          And the Obama admin may say that their priority is "detaining and deporting undocumented immigrants who are committing crimes other than simple immigration offenses." But that is not what is happening on the ground in Tucson, AZ.

          Remember, you can't have crazy without az.

          by Desert Rose on Fri Apr 27, 2012 at 07:49:28 PM PDT

          [ Parent ]

      •  A better Idea (0+ / 0-)

        A better idea would be to take the immigration detention out of the hands of for-profit prison system, and build a massive immigration prison in the middle of no-mans land, we have a lot of that here in the states.. Once you take the money out of the hands of the greedy bastards on all issues we could do much better as a country...

  •  Sotomayor will vote with Scalia on this one. (0+ / 0-)

    Bank on it.  Listen to her questions again.  Not good for the SG.

    I paid for MY silver spoon.

    by SpamNunn on Fri Apr 27, 2012 at 08:26:01 PM PDT

  •  This makes me think of Benson, Arizona (0+ / 0-)

    Benson, Arizona (song from Dark Star)

  •  Scalia doesn't understand federalism and is (0+ / 0-)

    therefore incompetent to serve on the court.

  •  Mr. Scalia is it? Sounds foreign to me. (0+ / 0-)

    Let's detain him for awhile until we can get a records check from the feds. Maybe it will take a week or two. They are awful slow.

    "I think it's the duty of the comedian to find out where the line is drawn and cross it deliberately." -- George Carlin, Satirical Comic,(1937-2008)

    by Wynter on Sat Apr 28, 2012 at 02:59:10 AM PDT

  •  Scalia's State Borders argument... (0+ / 0-)

    Scalia really doesn't want to go there. The idea of a "state" protecting it's borders physically is a bit far fetched. We are not a nation of small countries each with their own customs and duty free store. If Arizona wants to police it's borders so bad then they can secede from the union.

    "I think it's the duty of the comedian to find out where the line is drawn and cross it deliberately." -- George Carlin, Satirical Comic,(1937-2008)

    by Wynter on Sat Apr 28, 2012 at 03:01:50 AM PDT

    •  I'm sure they would like nothing better. (1+ / 0-)
      Recommended by:

      They can stop paying for states with out of control spending, and stop subjecting themselves to government mandates. Be careful what you wish for pal.

      •  In addition (0+ / 0-)

        there are and have been other similar issues. Let me suggest two:

         California had longstanding regulations on agricultural imports from other states, to the extent that flight crews used to force passengers to throw out any uneaten fruit before landing in CA. Didn't these regulations exceed federal law, let alone put a damper on interstate commerce?

        We might also ask ourselves what we think of state medical marijuana laws. If a state cannot choose to strictly enforce federal law, does that mean that it also cannot decline to enforce federal law? Is it free to pick and choose what federal law it enforces?

        •  California's agricultural import restrictions (0+ / 0-)

          A lot of the import restrictions for California are grounded in actual studies showing damage to the agricultural products from invasive species of plants and insects. New Hampshire also has restrictions on boating due to invasive plants that take over the waterways. The Dept of Agriculture is not fighting with California, but instead is letting it continue as a testbed for these types of restrictions. The DoA is in place to protect the agricultural interests of the country. Since California's restrictions go along with that premise there is no conflict.

          These "restrictions" by the state control commerce, not people. That is a very big leap. There is no INS at the state level. Just the local and state police forces which are not authorized to enforce federal INS laws. Now a state trying to overshadow the federal immigration laws with their own version of it is being challenged rightly so by the government. Since it's been solely the duty of the federal government thus far I don't see the state's having a prayer of getting allowances without the federal INS having the last say. If it was feasible to have the state's involved I am sure the INS would have done so. But to date having the state's set their own rules has been considered counterproductive.

          As for marijuana laws, that's another issue that I am sure will be fun to watch play out.

          "I think it's the duty of the comedian to find out where the line is drawn and cross it deliberately." -- George Carlin, Satirical Comic,(1937-2008)

          by Wynter on Sun Apr 29, 2012 at 06:02:12 PM PDT

          [ Parent ]

  •  No to secure communities? (0+ / 0-)

    This shows how weak the oppositions case is.

  •   It would be nice if the SCOTUS could recognize (0+ / 0-)

    the fact that the law was a blatant and racist political ploy which they found no reason to pass when G. Bush was wink, wink, nudge, nudging illegals across the border.
    They can't, I guess, make a judgement about Arizona Republicans,  but it would be nice.

    I'd rather have a buntle afrota-me than a frottle a bunta-me.

    by David54 on Sat Apr 28, 2012 at 06:42:22 AM PDT

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