Looking Ahead to Arizona’s Day in Supreme Court

Guest Blogger • Dec 27, 2011

by Lindsey George

Last week, the Supreme Court of the United States agreed to hear the Arizona v. United States case, which presents the question of whether Arizona’s anti-immigrant SB 1070 statute is preempted by federal immigration law and thereby unenforceable.

Eight months earlier the Ninth Circuit upheld a preliminary injunction that prohibited enforcement of the law until the parties litigated the law’s constitutionality. The Supreme Court’s decision will ultimately determine the extent to which states can pass their own immigration measures.

To be sure, the Supreme Court is not deciding whether the controversial measures in SB 1070 are constitutional; rather, it is determining the extent to which these measures conflict with federal law. When there is conflict, the Constitution prescribes that the federal law take precedence through the Supremacy Clause. According to a recent post on SCOTUS Blog, which covers the Supreme Court, the federal government has long asserted that the power to regulate immigration rests almost exclusively with Congress and the executive branch and that federal immigration laws are intended to be comprehensive.

If the Supreme Court disagrees with this assertion, it will erase the momentum of lower courts that have blocked anti-immigrant statutes based on preemption grounds. For instance, just last week US District Court Judge Richard Gergel temporarily blocked parts of South Carolina’s SB 20 law passed earlier this year. If Arizona wins in the Supreme Court, states would likely be free to pass their own versions of SB 20 and SB 1070 that give police officers the right to check the immigration status of any person they stop if they have “reasonable suspicion” that a person is in the country “without documentation.”

Interestingly, Justice Elana Kagan, who served as Solicitor General under President Obama and worked on this and similar anti-immigrant matters for the President, recused herself and will take no part in determining the case’s outcome. Practically speaking, the five-justice conservative majority that looks favorably on states’ law-making autonomy was already likely, as some feel, to rule in favor of Arizona. Justice Kagan’s absence just makes that outcome seemingly more likely.

However, Arizona’s potential victory in the federal courts the states’ resulting ability to pass these measures demonstrates the continuing need for bottom-up reforms that refocus the public’s view of immigration and immigrants living in the country.

Even though a Supreme Court ruling against Arizona would temporarily restrain states from passing these measures, the only long-term solution is shifting public perception. The court can only do so much when the political branches are backed by a majority or strong vocal minority that advocates for unjust laws. But if we can show the public the virtues of immigration, the benefits of an open society, and the real-world consequences that such laws dole out, perhaps states will not attempt to pass them in the first place.

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