The U.S. Supreme Court granted a petition for a writ of certiorari to hear an appeal in the case of Arizona v. United States, in which key provisions of Arizona’s controversial immigration law, SB 1070, were struck down as unconstitutional by U.S. District Judge Susan Bolton. The 9th Circuit of Appeals upheld Bolton’s ruling last April.
Two of the blocked sections would make it a crime under state law for an undocumented immigrant to be present in the state, fail to register with the federal government and attempt to obtain work or to hold a job without governmental authorization. Another section mandates that law enforcement personnel ask about the immigration status of those they detain (for infractions unrelated to immigration) if there is reason to suspect the detainee may not be in the country legally. The fourth challenged provision allows for the warrantless arrests of individuals whom police officers have probable cause to believe have committed deportable offenses.
The 9th Circuit upheld the lower court’s decision to strike down these provisions on the grounds that they unconstitutionally invaded the U.S. government’s comprehensive immigration regulation authority under federal law.
Arizona has argued that SB 1070 aids the federal government in the enforcement of its immigration laws and directs “state law-enforcement officers to cooperate and communicate with federal officials regarding the enforcement of federal immigration law.” As a border state, Arizona has a particular interest in helping the federal government to enforce the law. According to Arizona Governor Jan Brewer, 400,000 people live in Arizona illegally, and make up about 7 percent of the state’s workforce. She claims the number of illegal immigrants has increased by about 10,000 per year from 2000 to 2010, and “the federal efforts remain demonstrably inadequate.”
Nevertheless, the 9th Circuit appeals court rejected Arizona’s substantial state interest in helping to ensure effective enforcement of the federal immigration laws. It dismissed the idea that state efforts to facilitate federal enforcement or impose parallel prohibitions on conduct prohibited by federal immigration laws are an acceptable means to vindicate a state’s interest in protecting its citizens if the federal government does not want the state’s assistance.
Unlike the Supreme Court’s hearing of a constitutional challenge to Obamacare, in which it appears that Justice Elena Kagan does not intend to recuse herself even though she served as the Solicitor General when her office was considering litigation strategies to defend Obamacare in court, Justice Kagan is recusing herself in this case since the Obama administration’s decision to sue Arizona over SB 1070 occurred during her watch as Solicitor General. Exactly how she has distinguished the two situations remains unclear.
With Justice Kagan removing herself from the Arizona case, there is a possibility of a deadlock amongst the remaining eight Supreme Court justices, which would mean that the 9th Circuit decision striking down the key provisions of SB 1070 would stand as the final law on the matter. Thus, it will in all likelihood come down to what Justice Anthony Kennedy, frequently the swing vote on the Supreme Court, decides to do.
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