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Arizona Governor Jan Brewer meeting with President Barack Obama in June 2010 in the wake of SB 1070, to discuss immigration and border security issues.
President Obama with SB 1070 architect Arizona Gov. Jan Brewer
On Monday, the Supreme Court is likely to hand down its decision in Arizona v. United States, Arizona's infamous SB 1070 "papers, please" law, which the Court heard (PDF) earlier this year. The law empowered and required Arizona law enforcement officials to check whether persons were properly documented to be in the United States if such officials had a reasonable basis to believe a person was not legally in the United States. While the obvious problem with this law is that reasonable suspicion would almost certainly be based on apparent ethnicity, the legal issue the Court has been asked to decide is whether Arizona's law is preempted by federal immigration policy. The United States has expressly decided to not urge that SB 1070 is an equal protection violation. Read about preemption here.

(Continue reading below the fold)

A divided panel of the Ninth Circuit had ruled SB 1070 unconstitutional (PDF) as preempted by federal immigration policy. In its moving brief to the Supreme Court (PDF), the State of Arizona argued:

S.B. 1070 is fully consistent with Congress’ policies and it is simply an attempt by the State, pursuant to its inherent authority under Our Federalism, to add its own resources to federal ones in enforcing the precise legal rules, and using many of the procedures, prescribed by Congress.
The United States countered in its responding brief (PDF) that:


Professor Erwin Chemerinsky detailed the specific provisions of SB 1070 at issue:
• Section 2, which requires state and local officers to verify the citizenship or alien status of people arrested, stopped or detained. Section 2(B) provides that "for any lawful stop, detention or arrest made" by Arizona law enforcement, "where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person."

• Section 3, which makes it a crime in Arizona for a person to be unlawfully in the United States and to fail to register with the federal government. It requires that non-citizens carry registration papers showing that they are lawfully in the United States.

• Section 5, which makes it a crime in Arizona for a person who is not lawfully in the United States to work or seek work in the state. Section 5(C) makes it a misdemeanor for "a person who is unlawfully present in the United States and is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state."

• Section 6, which authorizes state and local police to arrest without warrants when "the officer has probable cause to believe … [t]he person to be arrested has committed any public offense that makes the person removable from the United States."

At oral argument, the justices expressed skepticism regarding the United States' blanket claim of preemption. Justice Sotomayor's interjections regarding Section 2(b) were illustrative:
I think your [Arizona's] argument is that, under any circumstance, a police officer would have the discretion to make that call [to the INS to verify naturalization status] . Seems to me that the issue is not about whether you make the call or not, although the government is arguing that it might be, but on how long you detain the individual, meaning -- as I understand it, when individuals are arrested and held for other crimes, often, there's an immigration check that most states do without this law.
And to the extent that the government wants to remove that individual, they put in a warrant of detainer.
Interpreted as only being available for person who have been detained for suspicion of breaking Arizona law, Section 2(b) seems to be viewed by the Court as not preempted by federal immigration policy. the justices then took a considerable amount of time discussing how long Arizona could detain a person whose naturalized status is being investigated.

The discussion then moved to Section 5. which makes it a crime in Arizona for a person who is not lawfully in the United States to work or seek work in the state. Chieg Justice Roberts expressed:

Section 5(C) [...] does seem to expand beyond the Federal government's determination about the types of sanctions that should govern the employment relationship. [...] The Federal government, of course, prohibits the employment, but it also imposes sanctions with respect to application for work. And the state of Arizona, in this case, is imposing some significantly greater sanctions.
This is significant because if the federal government has already set a regime regarding the employment of undocumented aliens, this would seem to have preempted the field. The test for this type of conflict preemption, was enunciated in Hines v. Davidowitz as Justice Sotomayor expounded in her questioning:
We can begin with the general principle that the Hines
v. Davidowitz language controls here, and we're going to ask our principal -- our primary function is to determine whether, under the circumstances of this particular case, Arizona's law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress? [...] The preemption language would be geared to what was decided to be punished. It seems odd to think that the Federal government is deciding on employment sanctions and has unconsciously decided not to punish employees.
Similarly, Section 3 of SB 1070 purports to make it illegal under Arizona law to be in Arizona without proper federal documentation. But federal law already covers this area. Justice Ginsburg remarked:
I would think the largest hurdle for you is Hines, which said the registration scheme --Congress enacted a complete registration scheme which the states cannot complement or impose even auxiliary regulations. So I don't see the alien registration as a question of obstacle preemption, but appeal preemption that alien -- we don't want competing registration schemes. We want the registration scheme to be wholly Federal.
So Section 2 looks likely to be upheld while the rest of SB 1070 looks vulnerable. But are they?
JUSTICE SCALIA: Well, 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 -- has no power? What -- what does sovereignty mean if it does not include the ability to defend your borders?
I start with this quote from Justice Scalia because it really puts the lie to the notion that Scalia is some intellectual giant. It is truly one of the most foolish and embarrassing questions ever asked by a Supreme Court Justice.

Solicitor General Verilli is forced to explain basic constitutional law to Justice Scalia:

GENERAL VERRILLI: Your Honor, the -- 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 [... States]  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 -- 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.
After this embarrassing interlude, Chief Justice Roberts and Justice Alito ask hypothetical questions about whether SB 1070 would be preempted if the federal government had different priorities that were consistent with SB 1070. Verilli answers it would still be preempted, but the question is a moot one.

Indeed, a reading of the oral argument indicates that the Court seems fairly convinced that much of SB 1070 is preempted, but there was a great deal of pushback on Section 2, which the conservative members of the Court (Scalia's embarrassing meanderings excepted) were at pains to describe as merely providing information to the federal government, not an attempt to enforce federal law by Arizona officials.

But I was struck by one of the unstated objections one would imagine the conservative Justices, so jealous of State sovereignty, would voice—the deputization of state officials to enforce federal laws. This irony is illustrated in some questioning by Justice Breyer:

JUSTICE BREYER: Look, in the Federal statute, it says in 1373 that nobody can prohibit or restrict any government entity from making this inquiry of the Federal government. And then it says that the Federal government has -- any agency -- and then it says the Federal government has an obligation to respond. [...] If that were the situation, and we said it had to be the situation, then what in the Federal statute would that conflict with, where we have two provisions that say any policeman can call?

GENERAL VERRILLI:  I think -- I understand the question. And I think the answer is this: 1373 was enacted in 1996, along with 1357. And 1357 is the provision that sets forth the powers and authorities of Federal immigration officials.
It contains 1357(g), which effectively says that Federal -- that the Federal government, the Attorney General, can deputize state officials, so long as they're -- they obtain adequate training, and they are subject to the direction and control of the Attorney General in carrying out immigration functions.

Then the last provision, (g)(10), says that nothing that we've said so far should be read to -- to preclude informal cooperation, communication or other informal cooperation in the apprehension, detention, and removal of unlawfully present persons, but it's the focus on cooperation. And I think you have to -- so I don't think you can read into 1373 the -- the conclusion that what Congress was intending to do was to shift from the Federal government to the states the authority to set enforcement priorities because I think the cooperation in this context is cooperation in the service of the Federal enforcement.

The federal law permits the "deputization" of state officials by the federal government to enforce federal immigration law.In Printz v.US, Justice Scalia, writing for the Court, stated:
From the description set forth above, it is apparent that the Brady Act purports to direct state law enforcement officers to participate, albeit only temporarily, in the administration of a federally enacted regulatory scheme. Regulated firearms dealers are required to forward Brady Forms not to a federal officer or employee, but to the CLEOs, whose obligation to accept those forms is implicit in the duty imposed upon them to make "reasonable efforts" within five days to determine whether the sales reflected in the forms are lawful. While the CLEOs are subjected to no federal requirement that they prevent the sales determined to be unlawful (it is perhaps assumed that their state law duties will require prevention or apprehension), they are empowered to grant, in effect, waivers of the federally prescribed 5 day waiting period for handgun purchases by notifying the gun dealers that they have no reason to believe the transactions would be illegal. The petitioners here object to being pressed into federal service, and contend that congressional action compelling state officers to execute federal laws is unconstitutional. [...]

The Framers' experience under the Articles of Confederation had persuaded them that using the States as the instruments of federal governance was both ineffectual and provocative of federal state conflict. See The Federalist No. 15. Preservation of the States as independent political entities being the price of union, and "[t]he practicality of making laws, with coercive sanctions, for the States as political bodies" having been, in Madison's words, "exploded on all hands," 2 Records of the Federal Convention of 1787, p. 9 (M. Farrand ed. 1911), the Framers rejected the concept of a central government that would act upon and through the States, and instead designed a system in which the state and federal governments would exercise concurrent authority over the people--who were, in Hamilton's words, "the only proper objects of government," The Federalist No. 15, at 109. We have set forth the historical record in more detail elsewhere, see New York v. United States, 505 U. S., at 161-166, and need not repeat it here. It suffices to repeat the conclusion: "The Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States." Id., at 166. [n.10] The great innovation of this design was that-our citizens would have two political capacities, one state and one federal, each protected from incursion by the other"--"a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it." U. S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring). The Constitution thus contemplates that a State's government will represent and remain accountable to its own citizens. See New York, supra, at 168-169; United States v. Lopez, 514 U.S. 549, 576-577 (1995) (Kennedy, J., concurring). Cf. Edgar v. MITE Corp., 457 U.S. 624, 644 (1982) ("the State has no legitimate interest in protecting nonresident[s]"). As Madison expressed it: "[T]he local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere." The Federalist No. 39, at 245. [n.11] [...]

We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the State's officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.

Here Scalia and the merry band of conservatives seems eager to have the State of Arizona commandeered and deputized to enforce federal immigration law. The dissonance is jarring indeed.

In any event, it seems clear that the Court seems inclined to uphold Section 2 of SB 1070, the provision for reporting to federal officials, while being much more leery, Scalia excepted, from permitting Arizona to construct state law crimes based on violations of federal immigration law.

We'll likely see on Monday.

Originally posted to Daily Kos on Sat Jun 23, 2012 at 02:00 PM PDT.

Also republished by Baja Arizona Kossacks.

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Comment Preferences

  •  So, why did the Administratiom (2+ / 0-)
    Recommended by:
    DEMonrat ankle biter, WisVoter

    oppose examining this as an equal protection issue?

    Because they feared the damage if the Court ruled otherwise. or because they wanted the Administration to have the flexibility to profile, or some other reason?

    •  the equal protection (11+ / 0-)

      argument is moving through the courts in another case.

      •  That doesn't seem like a sufficient reason - (1+ / 0-)
        Recommended by:

        If SCOTUS says this law is okay without addressing equal protection, it seems harder to then re-challenge it on that basis...

        •  I could guess (5+ / 0-)
          Recommended by:
          Supavash, Irixsh, WisVoter, kaliope, MrJersey

          (but may be wrong) that it's tactical. Better to send the case to SCOTUS on the preemption issue first than on the racial profiling issue. This Court is not very good on race issues.

          That said though, they absolutely can hear the equal protection challenge if it involves parts of the law that still remain in effect after this decision comes out.

          I am proud to be a Contributor at Courage Campaign Institute's
          @indiemcemopants on Twitter

          by Scottie Thomaston on Sat Jun 23, 2012 at 02:33:09 PM PDT

          [ Parent ]

        •  equal protection (4+ / 0-)

          is a separate argument from preemption. The statute could be found to be perfectly fine in preemption world, yet still transgress equal protection.

          One can comport with the Constitution in many ways, yet a violation of even one constitutional stricture puts you squarely in the dumper. For instance, the Yick Wo people could have been told to bugger off on the commerce clause, yet on equal protection they prevailed.

          The Friendly House people are developing a good record on equal protection. That was not true of the case currently before the court.

          There is of course the risk that the hack judicial activists on the high court could run utterly wild and pronounce the Arizona statute so wondrous and god-blessed that it does not now and never can violate any constitutional provisions whatsoever, world without end, amen. However, it is hard to imagine that even this clown car would careen so wildly from what is proper and customary.

    •  Maybe (0+ / 0-)

      The administration found it easier to challenge the law on this ground? I imagine it would be better to focus on a single reason rather than two. Furthermore, if the SCOTUS strikes this law down on this ground, then it prevents any other states from creating similar laws.

      Republicans are far more socialist than Democrats. Just because they want to redistribute the wealth upwards does not make it any better.

      by MrAnon on Sat Jun 23, 2012 at 02:27:34 PM PDT

      [ Parent ]

  •  It will be upheld (5+ / 0-)
    Recommended by:
    Supavash, a2nite, Al Fondy, Matt Z, MrJersey

    The activist right wing lunatics on the court are more interested in playing petty right wing politics (Bush v Gore, Citizens United), than they are in handing down fair and honest rulings.

    I've also suspected all along that HCR would be overturned. Not because it's unconstitutional, but because some of the members of the current Roberts Court (Scalia, I'm looking at you) are among that most dishonest, deceitful and corrupt members of the court in history.

    Chicago - Proud Home of the 1908 World Series Champion Chicago Cubs

    by Jeff Y on Sat Jun 23, 2012 at 02:16:48 PM PDT

  •  Answer: (1+ / 0-)
    Recommended by:


    "I'll believe that corporations are people when I see Rick Perry execute one."

    by bink on Sat Jun 23, 2012 at 02:20:43 PM PDT

  •  ACA or other decision could come Monday July 2 (1+ / 0-)
    Recommended by:

    Everyone is assuming that the decisions all come down next week, but I'd just point out that they have come later.  In 1989 Webster v. Reproductive Health Services, an abortion case, was handed down on Monday July 3.   Don't know of other cases, but it must have happened on other occasions with difficult or controversial cases.  

    The scientific uncertainty doesn't mean that climate change isn't actually happening.

    by Mimikatz on Sat Jun 23, 2012 at 02:20:47 PM PDT

    •  Well so far (0+ / 0-)

      there doesn't appear to be another opinion day on the calendar past Monday. They could say then that they'll issue the remaining opinions later, but it seems like they would have already added other days. (I think they've been letting people know by Fridays if they'll be issuing opinions on days other than Mondays.)

      I am proud to be a Contributor at Courage Campaign Institute's
      @indiemcemopants on Twitter

      by Scottie Thomaston on Sat Jun 23, 2012 at 02:35:39 PM PDT

      [ Parent ]

      •  There will be at least one day after Monday (1+ / 0-)
        Recommended by:

        It is customary for the chief justice to announce at the end of the next-to-last opinion day that the next one will be the last.  

        Roberts made no such announcement last Thursday, so Monday is not the last day, and if he makes no such announcement on Monday, then opinions will be issued on at least two more days after Monday.

        Please help to fight hunger with a donation to Feeding America.

        by MJB on Sat Jun 23, 2012 at 09:05:09 PM PDT

        [ Parent ]

    •  Considering that the questioning leads me to (0+ / 0-)

      believe that every justice but maybe Kennedy and Roberts had already made up their mind before coming in, I find it highly amusing it's taking this long.

      •  Please correct me if I am wrong, but it (1+ / 0-)
        Recommended by:

        was my opinion, that stripping away all the rhetoric, the mandate is good for the insurance companies. I don't see how Roberts, so pro business as he seems to be would do anything to hurt them financially.
        What would happen if they struck down the whole law? Could they do that? Or was just the constitutionality of the mandate argued?
        As far as AZ law, I don't see how they can not conclude that it is not "racial profiling".  Hell, even Scalia and Thomas have to recognize that to be the intent of this law.  I was under the impression that that is part of the responsiblity of any justice, to determine what the intent is behind an act. Why should the Supremes be any different?

        •  The premise is that if it hurts a Democrat (Obama) (1+ / 0-)
          Recommended by:

          then it's good.

          The speculation is that they won't rule on the absolute merits or the true constitutionality, but rather on what not only the Chamber wants, but the political side--will it hurt Democrats and Obama.

          "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 Sat Jun 23, 2012 at 05:01:35 PM PDT

          [ Parent ]

  •  Section 2 detainment not likely (0+ / 0-)

    Section 2 may be upheld but it will likely be watered down. I can't imagine they will allow states to hold a suspect that is not guilty of a crime indefinitely. There is no telling how long it would take to ascertain the immigration status of an individual without papers in hand. And even with papers in hand to verify they aren't forged.

    At issue here is detaining an individual without any other cause than being suspected of being here unlawfully. You could then see police pulling over anyone and holding them despite knowing they are here legally. This could easily be abused by local officials.

    I can see local police being allowed to notify INS to request they validate the immigration status of an individual, but without any reason to hold a person (ie. breaking state laws) then they should not be held.

    "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 Jun 23, 2012 at 02:26:52 PM PDT

  •  INS decides enforcement (0+ / 0-)

    I can see why the locals are all up in arms about wanting to arrest illegal aliens. But unless the INS gives them powers to do so I don't see this changing anytime soon.

    SCOTUS probably will allow local enforcement officers to be deputized as INS agents, but I don't see the INS doing so unless they need them and control them. The federal government should be the ones maintaining and enforcing these laws. Having separate immigration organizations across the country would have a chilling effect on immigration.

    "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 Jun 23, 2012 at 02:33:32 PM PDT

  •  I'm hoping that Justice Sotomayor ... (4+ / 0-)
    Recommended by:
    Irixsh, Radiowalla, blueness, WisVoter

    ... includes in her opinion a slippery slope argument about how Arizona could decide to no longer accept the U.S. dollar as currency and move, instead, to an all-broccoli standard.

    I would tip you, but the man took away my tips.

    by Tortmaster on Sat Jun 23, 2012 at 02:45:56 PM PDT

    •  Why do you say, Justice Sotomayor, (0+ / 0-)

      hell anyone of them can make that argument? I think perhaps this community can see her for an accomplished justice, who is competent to decide many issues, rather than mock her as "a wise Latina woman", as the right wing does.

  •  States & money have rights; humans don't (1+ / 0-)
    Recommended by:

    The radical Republican party is the party of oppression, fear, loathing and above all more money and power for the people who robbed us.

    by a2nite on Sat Jun 23, 2012 at 02:47:04 PM PDT

  •  Thanks for a great summary (1+ / 0-)
    Recommended by:

    and especially your final paragraph.  I agree that upholding Section 2 is most likely.  The rest is overreaching by Arizona in an attempt to create their own immigration laws.

    •  I seriously doubt those jerks who wrote and pushed (0+ / 0-)

      through this law really give a rats ass about immigration. I think all this law was designed to do was to placate the crazy racists that live there. If they truly cared about the immigration problem that exists, not only in AZ, but in many other border states, they would get together with CA, N.M. and Texas, and force the Congress to do something about comprehensive immigration reform.  One ridiculous law in a crazy ass state is not going to solve the immigration problem, we need reform, and fair immigration policies.

  •  Answer: it depends on what the power (0+ / 0-)

    brokers behind the curtains want scotus to do.  Their decision certainly won't be based upon our Constitution or stare decisis.

    "It took us a couple of days because I like to know what I'm talking about before I speak." President Barack Obama 3/24/09

    by sfcouple on Sat Jun 23, 2012 at 02:56:04 PM PDT

  •  Wonder how much of deision is trade-off by SCOTUS (0+ / 0-)

    to appease right-winger politicians yet somehow deal with potential abuse of this law in state and local police practices.

  •  The infamous Governor Jan Brewer (1+ / 0-)
    Recommended by:
    Matt Z

    speaks her mind:

    -4.75, -5.33 Cheney 10/05/04: "I have not suggested there is a connection between Iraq and 9/11."

    by sunbro on Sat Jun 23, 2012 at 03:02:01 PM PDT

  •  Deputization (1+ / 0-)
    Recommended by:

    Is there a difference between the federal government requiring something of state law enforcement and a state volunteering its law enforcement apparatus to aid federal law enforcement?

  •  It seems that bypassing the main human element.. (0+ / 0-)

    ..of judging reasonable suspicion on apparent ethnicity, SCOTUS decision is one of states rights..

    While the obvious problem with this law is that reasonable suspicion would almost certainly be based on apparent ethnicity, the legal issue the Court has been asked to decide is whether Arizona's law is preempted by federal immigration policy.
    ..over what imo is more important - equal protection under the law.

    It also seems that section 2(c) of SB 1070 should also be pre-empted by the Fed.

    Hines: ..“manifested a purpose to [regulate immigration] in such a way as to protect the personal liberties of law-abiding aliens through one uniform national . . . system[] and to leave them free from the possibility of inquisitorial practices and police surveillance.” 312 U.S. at 74.
    Especially if this is where Scalia is coming from:
    But if, in fact, somebody who does not belong in this country is in Arizona, Arizona has -- has no power?
    WTF does that add? except evidence that they're using non-citizens as playthings. Because how do you determine if someone "belongs" during a roadside traffic stop.

    I realize this is not what the court is deciding, so my comment is OT but if this is about states rights and not protecting the rights of law abiding non-citizens they should just have at it and name it so.

  •  I would have burned her chair after she left. (0+ / 0-)


    "The disturbing footage depicts piglets being drop kicked and swung by their hind legs. Sows are seen being kicked and shoved as they resist leaving their piglets."

    by Bush Bites on Sat Jun 23, 2012 at 03:40:35 PM PDT

  •  Yes, yes, of course they will (0+ / 0-)

    on 5-4 decision.

    Because that's what we're reduced to - GOP vs Democrat - money pays for our lawmakers and our SCOTUS.

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