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Arizona immigration law: Another setback for Obama at Supreme Court?

Tough questioning by the justices suggest that at least some of the provisions of the Arizona law may be upheld, rejecting the Obama administration's expansive view of federal power.

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“The state has no power to close its borders to people who have no right to be there?” Justice Antonin Scalia asked.

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Arizona’s lawyer, Paul Clement, said that one of the provisions of the Arizona law allows state officials to prosecute illegal immigrants for failing to carry a federal immigration document. Mr. Clement said the state could use that power under state law to take action against illegal immigrants.

Justice Anthony Kennedy later repeated the question: “Can we say, or do you take the position, that a state must accept within its borders a person who is illegally present under federal law?”

Again, Clement said the state had power to act.

Later, Verrilli was asked a version of the same question, whether Arizona had the power to exclude illegal immigrants from its borders. He said, no.

“The Constitution vests exclusive authority over immigration matters with the national government,” Verrilli told the justices. He said Arizona was seeking to craft its own immigration policy rather than cooperating with federal policy set in Washington.

“Arizona has no power?” Scalia asked. “What does sovereignty mean if it does not include the ability to defend your borders?”

Verrilli said the Framers vested immigration authority in the national government “because they understood that the way this nation treats citizens of other countries is a vital aspect of our foreign relations.”

Scalia said it is still up to the national government to decide who can and can’t enter the US. “Arizona is not trying to kick out anybody that the federal government has not already said does not belong here,” he said.

Scalia said the federal government was seeking to preempt Arizona’s law based on enforcement priorities rather than underlying federal statutes.

“Suppose that the federal government changed its priorities tomorrow, and it said the new policy is maximum enforcement,” Justice Samuel Alito asked. “Would the Arizona law then be un-preempted?”

Verrilli said it would still be a problem. “These decisions have to be made at the national level because … it’s the whole country and not an individual state that pays the price.”

At issue in the case are four provisions of a 2010 Arizona law, designed to encourage illegal immigrants to either go home, relocate to a more immigrant-friendly state, or begin fully complying with US and Arizona laws.

A central provision of the law encourages state and local law enforcement officials to check immigration status during any lawful stop when police have reason to suspect the individual is in the US without legal authorization.

The law also makes it a state crime for an undocumented immigrant to work in Arizona. It requires all noncitizens to carry at all times a federal registration card and makes it a violation of Arizona law to fail to produce the document on demand.

The law also authorizes Arizona law enforcement officials to arrest an immigrant without a warrant when they have probable cause to believe the immigrant committed a deportable offense.

Critics claim the measure will lead to illegal racial profiling. Supporters say it is necessary to compensate for lax and ineffective federal enforcement of immigration laws and border controls.

The Obama administration objected to the law and filed a lawsuit seeking a temporary injunction.

A federal judge agreed with the Obama administration, blocking the four provisions. A panel of the Ninth US Circuit Court of Appeals affirmed.

The case is being heard by eight justices, following the recusal of Justice Elena Kagan, who worked on the Arizona case as solicitor general in the Obama administration prior to joining the high court.

A decision in the case is expected by late June.

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