Will SCOTUS uphold Arizona's 'papers, please' law?

President Obama with SB 1070 architect Arizona Gov. Jan Brewer

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.

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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:

CONGRESS VESTED THE EXECUTIVE BRANCH WITH THE AUTHORITY AND THE DISCRETION TO MAKE SENSITIVE JUDGMENTS WITH RESPECT TO ALIENS, BALANCING THE NUMEROUS CONSIDERATIONS INVOLVED: NATIONAL SECURITY, LAW ENFORCEMENT, FOREIGN POLICY, HUMANITARIAN CONSIDERATIONS, AND THE RIGHTS OF LAW-ABIDING CITIZENS AND ALIENS. THE EXECUTIVE BRANCH HAS CONSIDERABLE STATUTORY DISCRETION TO DECIDE WHO MAY ENTER AND WHO MUST LEAVE; WHO MUST REGISTER WHILE IN THE COUNTRY, WITH WHOM, AND UNDER WHAT CONDITIONS, AND WHAT PUNISHMENT TO SEEK FOR A VIOLATION; WHO MAY WORK WHILE HERE; AND WHEN AN ALIEN IS SUBJECT TO REMOVAL, WHAT CONSIDERATIONS MIGHT JUSTIFY ALLOWING HER TO REMAIN AT LIBERTY TEMPORARILY, OR EVEN TO
REMAIN IN THE COUNTRY PERMANENTLY. [...]

IN S.B. 1070, ARIZONA SEEKS TO INTERPOSE ITS OWN JUDGMENTS ON THOSE SENSITIVE SUBJECTS. ARIZONA HAS ADOPTED ITS OWN IMMIGRATION POLICY, WHICH FOCUSES SOLELY ON MAXIMUM ENFORCEMENT AND PAYS NO HEED TO THE MULTIFACETED JUDGMENTS THAT THE INA PROVIDES FOR THE EXECUTIVE BRANCH TO MAKE. FOR EACH STATE, AND EACH LOCALITY, TO SET ITS OWN IMMIGRATION POLICY IN THAT FASHION WOULD WHOLLY SUBVERT CONGRESS’S GOAL: A SINGLE, NATIONAL APPROACH. EACH PROVISION OF S.B. 1070 AT ISSUE HERE IS PREEMPTED.

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.