While it’s too early to guess how the Court might rule, legal precedent could be in Arizona’s favor. As noted, the Court has previously upheld state immigration laws deemed concurrent with federal law. Most notably, in the 1976 case of De Canas v. Bica, the Court unanimously overruled a Superior Court’s decision that a California law prohibiting the state’s businesses from employing illegal aliens was unconstitutional. The Superior Court had struck the law down because it “encroaches upon, and interferes with, a comprehensive regulatory scheme enacted by Congress in the exercise of its exclusive power over immigration.” That is essentially the same argument that the Obama administration is now making against the Arizona law. But in Bica, the Supreme Court rejected that argument, ruling that California could exercise concurrent jurisdiction with the federal government. That is exactly what Arizona is asserting today.
The current Court has also been willing to follow that principle. Last May, in the case of Chamber of Commerce v. Whiting, the Court upheld Arizona’s Legal Arizona Workers Act, a 2007 law that imposed stricter penalties on employers that failed to verify the immigration status of their employees. While that decision did not directly address the later 2010 law, the Obama administration contested it on the same grounds, namely that the law conflicted with federal immigration law. In a 5-3 decision, the Court disagreed, ruling that Arizona’s law was supplementing rather than conflicting with federal laws to prevent the hiring of illegal immigrants. Arizona’s 2010 law is a different case, to be sure, but the Court’s decision in Whiting suggests that it may be receptive to upholding state laws deemed concurrent with federal enforcement efforts.
If the legal outcome is not obvious, the political fallout is also hard to predict. Critics of the Arizona law seem to believe that a decision upholding it would put Republicans on the defensive with Hispanic immigrants and throw swing states like Florida into doubt. That is one possibility. Equally, though, overturning the law could cause a major headache for the Obama administration. Polls show that Americans overwhelmingly support tougher immigration enforcement. Thwarting an embattled state’s efforts to come to grip with its illegal immigration problem is not a strategy calculated to win over the American public.
Democrats at any rate are taking no chances with the outcome. Notwithstanding their recent demands that the Supreme Court respect “duly constituted and passed” laws, Democrats are already plotting to pass legislation that would invalidate Arizona’s anti-illegal immigration law if the Supreme Court upholds it. The law would require state immigration laws to first get federal approval. Almost certain to fail in Congress, the bill would send the message that Democrats are prepared to sacrifice states’ rights at the altar of their political causes. But then, with its health care legislation and its relentless campaign against the Arizona law, the Obama administration may have sent that message loud and clear already.
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