Arizona immigration law: states vs. Obama at US Supreme Court, again

The US Supreme Court is set to hear arguments Wednesday concerning the tough Arizona immigration law. Key question: Does the state statute usurp federal authority to set immigration policy?

Ross D. Franklin/AP
Sheriff’s officers begin the initial on-the- scene processing of a suspected illegal immigrant in Wickenburg, Ariz. Arizona is battling the federal government in court over the right to enact and enforce stricter laws against illegal immigration.
Rich Clabaugh/Staff

For the second time in a month, the US Supreme Court will hear oral argument in a major election-year dispute that pits state officials against the Obama administration over the balance of power between states and the national government.

On April 25, the issue before the justices is whether Arizona exceeded its authority when it passed a tough immigration enforcement statute, Senate Bill 1070, designed to encourage illegal immigrants to pack up and leave. The Arizona strategy is called "attrition through enforcement."

The Arizona case comes roughly a month after 26 states argued at the high court that Congress had overstepped its authority in passing the president's health-care reform law.

As in the health-care case, the stakes in the immigration dispute extend well beyond fundamental questions about the scope of state and federal power. A high court decision in late June could boost or complicate political fortunes in a presidential election year.

Immigration is an important issue to many Latino voters, a significant and growing constituency within the US electorate. Polling shows President Obama with a substantial lead among Latinos over presumptive Republican nominee Mitt Romney.

But immigration is also a powerful issue among conservatives and many independents. Polls show that despite an Obama administration lawsuit to block Arizona’s immigration enforcement law, Americans favor the state’s tough provision 2 to 1.

As if that isn't enough drama, the same two lawyers who argued the health-care case are set to face off again in the Arizona dispute – Washington appellate lawyer Paul Clement and Solicitor General Donald Verrilli.

The question for the high court is whether Arizona and other states are entitled to pass state laws that mirror specific provisions in federal immigration statutes and strictly enforce those provisions even when the Obama administration has decided – as a matter of policy and budgetary constraint – not to enforce those same provisions.

"There is absolutely no conflict between these [Arizona] provisions and federal law because SB 1070 adopts the federal rule as its own," Mr. Clement writes in his brief on behalf of Arizona.

He adds: "Unless and until Congress expressly forecloses such efforts, Arizona has the inherent authority to add its own resources to the enforcement of federal laws."

Solicitor General Verrilli argues in his brief on behalf of the administration that the Constitution assigns matters of immigration and border enforcement exclusively to the national government. He adds that Congress gave the executive branch substantial discretion to decide how best to enforce the laws.

SB 1070 is an attempt by Arizona to impose state priorities in place of the president's national priorities, Verrilli says. Rather than attempting to arrest and deport all illegal immigrants, the Obama administration says it is focusing on violent criminals and those posing a potential national security threat.

"Arizona has adopted its own immigration policy, which focuses solely on maximum enforcement and pays no heed to the multifaceted judgments that the [federal immigration law] provides for the executive branch to make," Verrilli writes.

"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," he says.

Arizona's SB 1070 is best known for a provision that requires state and local law enforcement officials to check the immigration status of anyone detained in a traffic or other stop whenever authorities have reason to suspect the individual is in the United States illegally.

In addition, the state law also requires noncitizens and nonpermanent residents in Arizona to carry an immigrant registration document like a green card. It makes it illegal for an undocumented immigrant to work or apply for work in Arizona, and it empowers the police to make warrantless arrests when the officer has probable cause to believe the subject has committed a deportable offense.

Critics say the law will lead to illegal racial profiling. Supporters say it is an effort to make up for lax immigration and border enforcement by the administration.

In 2010, the Obama administration sued Arizona to block the law. A federal judge issued an injunction. A panel of the Ninth US Circuit Court of Appeals affirmed.

Arizona appealed to the Supreme Court.

In addition to the legal issues, the case is a potential political blockbuster in a presidential election year.

The president's kinder, gentler immigration approach is believed to have paid significant political dividends to the president and the Democratic Party among Latinos.

Republicans are split on how best to address immigration. Some favor the tough approach embraced by Arizona, while others are concerned that it could drive Latino voters wholesale to the Democrats.

Nonetheless, Arizona is not alone in its quest for tougher enforcement. Five states passed similar immigration enforcement laws in 2011. They are Alabama, Georgia, Indiana, South Carolina, and Utah.

Three of the states were sued by the Obama administration, and all five state laws have been temporarily blocked by federal judges.

Sixteen states filed a friend of the court brief supporting Arizona in the Supreme Court case. Eleven states filed a brief supporting the administration.

States supporting the administration argue that state governments have broad power to enact laws addressing the impact of undocumented immigrants. But that power does not extend to the federal government's authority to remove undocumented immigrants residing in a particular state.

"Congress could have delegated to the states, as it did to the executive branch, the same broad enforcement authority to arrest and detain undocumented immigrants for purposes of removal. But Congress declined to adopt that model," writes New York Solicitor General Barbara Underwood in a brief on behalf of states supporting the administration's position.

Michigan Solicitor General John Bursch presents a broader view of state power in his brief on behalf of states supporting Arizona.

"Congressional intent is furthered, not thwarted, when state law enforcement officers verify and communicate to the federal government their reasonable suspicion that an individual is in the country illegally," he writes. "A contrary conclusion stands the whole notion of federal preemption on its head: a state enforcing congressional directives too well is an obstacle to congressional intent."

He compared federal immigration statutes with the federal Clean Water Act. The antipollution regulation is designed to enforce a national environmental standard, but states are free to apply more stringent protections of water quality within their own jurisdictions, he said.

Verrilli argues that the president's discretion in immigration enforcement is broader than in other areas because immigration is intricately interwoven with foreign relations.

He says humanitarian considerations, foreign-policy considerations, or other reasons may counsel against an illegal immigrant's deportation. Verrilli added that budget considerations may also be a factor.

"[The Department of Homeland Security] receives sufficient funding to provide for the removal of only about 400,000 aliens per year, whereas an estimated 10.8 million aliens are unlawfully present," he said.

According to US Immigration and Customs Enforcement statistics, immigration officials under Obama removed 1.179 million illegal immigrants from the US during the three years from 2009 to 2011.

Despite the administration's claimed priority of targeting violent convicts, the statistics show that less than half (46.5 percent) were convicted criminals.

The majority (630,789) are listed as noncriminals who were found to be illegally present in the US and removed.

The case is Arizona v. US (11-182). A decision is expected by late June.

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