SB 1070 in the Supreme Court: Three views of what may happen and what it would mean

Two years after it was signed into law and many imitations later, Arizona’s precedent-setting SB 1070 anti-illegal immigration law is headed to the U.S. Supreme Court next week. The high court, with one justice recused, is set to hear oral arguments April 25.

The federal government filed suit against the state of Arizona not long after SB 1070 was signed into law April 23, 2010, challenging the measure on the grounds that its provisions were “preempted” by federal immigration law. That July, on the eve of its implementation, four controversial provisions of the law – including one that empowered local police to check for immigration status based on “reasonable suspicion” that a person may be undocumented – were blocked by a federal judge in Phoenix.

After a federal appeals court upheld the lower court judge’s decision, Arizona filed a petition with the Supreme Court: “The question presented,” the petition reads, “is whether the federal im-migration laws preclude Arizona’s efforts at cooperative law enforcement and impliedly preempt these four provisions of S.B. 1070 on their face.”

This is what the high court is set to weigh. There are nationwide implications depending on what happens: In the two years since, statehouses around the country have considered SB 1070-style measures. Enforcement-based anti-illegal immigration laws patterned after SB 1070 are now in place in Georgia, South Carolina, Indiana, Utah and Alabama, whose HB 56 is deemed the nation’s strictest state immigration law.

Of the states that have enacted SB 1070-style laws, all have faced legislative challenges, some from the federal government, others from civil rights groups. Judges who have held off on issuing rulings area waiting to see what the Supreme Court decides.

Will the Supreme Court decide once and for all whether states can go it alone in immigration enforcement, or rule that enforcing immigration laws is the strictly the job of the federal government? It’s unlikely that the high court will issue a ruling on SB 1070 until June, unless the court splits its vote 4-4, which would prompt an announcement soon after the vote.

In the meantime, here are three good analyses of what might happen and what it would mean.

The Immigration Policy Center issued a comprehensive list of questions and answers on Arizona v. United States earlier this month, which included these:

Q: What will happen if the Supreme Court rules against Arizona?

If the Court upholds part or all of the preliminary injunction (in other words, rules against all or parts of SB 1070), the enjoined provisions will continue to be prevented from going into effect. The case would go back to the district court in Phoenix to issue a permanent injunction. It is possible that the Arizona legislature could pass modifications to SB1070, however, in which case the district court would have to evaluate the validity of the modifications in light of the Supreme Court’s opinion.

Q: What will happen if the Supreme Court rules for Arizona?

Effect on Arizona

If the Court finds federal law not to preempt any or all of the provisions, the preliminary injunction will be lifted and the legal challenge to those provisions will be effectively over. Importantly, however, even if the Court allows the contested provisions to go into effect, future litigants may still challenge how the law is applied on a case-by-case basis. For example, even if Arizona law enforcement officers have the authority to investigate the immigration status of foreign nationals they stop in public, persons who are excessively detained during such investigations may bring individual challenges to the manner in which that authority is exercised.

In addition, a Supreme Court ruling in favor of Arizona would not forestall existing challenges to SB 1070 by private individuals and organizations….

Effect on other States

The effect of the Court’s ruling on other states with copycat laws—including Alabama, Georgia, Indiana, South Carolina, and Utah—will depend on the scope of the decision. If provisions of SB 1070 are found to be preempted under federal law, identical provisions of other state laws will also be prevented from going into effect. However, copycat laws in other states contain provisions that are not before the Supreme Court in this case. For example, the decision will not definitively resolve the legality of the provision of Alabama HB 56 that requires school administrators to ascertain the immigration status of newly enrolling students.

The Council on Foreign Relations published a Q&A today with its immigration expert Edward Alden, who covered SB 1070 as part of the interview and offered an interesting take on how states already participate in enforcing immigration laws:

The issue will be: do states have the authority to set their own immigration enforcement priorities? If you look historically, immigration has been seen as exclusively a federal preserve–who gets let into the country legally, who is removed for being in the country illegally, those are all matters of federal jurisdiction. So certainly, based on the history, one would think that Arizona overreached in the case of this law, but again, it’s hard to predict.

Through Secure Communities, states are already quite active in immigration enforcement. This is a federal program, and so you have state and local police forces that are in effect being deputized by the federal government to run certain immigration checks. Legally, that’s different than what Arizona has done, which is to pass its own state law giving its police similar authorities, and then drags the federal government in. The jurisdiction questions are somewhat different, but clearly, states are already deeply involved in immigration enforcement. So it’s difficult to predict exactly how the Court is going to come down on a question like this.

And there’s this analysis from Kevin Johnson, dean of the UC Davis School of Law who blogs at ImmigrationProf Blog, written before the Supreme Court agreed to take up SB 1070. Predicting that it would, Johnson presented different scenarios, including whether a Supreme Court decision last year to uphold the Legal Arizona Workers Act of 2007, which required employers to verify new hires’ legal status, could be held as a precedent:

Both cases involve the question of federal preemption of state efforts to regulate immigration.  However, in my estimation, the Court’s decision in Whiting to uphold the constitutionality of the Legal Arizona Workers Act does not necessarily mean that the Court will uphold S.B. 1070.

Several distinctions are readily apparent between United States v. Arizona and Chamber of Commerce v. Whiting.  The court of appeals characterized S.B. 1070 as Arizona’s “own immigration law enforcement policy,” which sounds ominously like the law may well intrude on the “unquestionably exclusively federal power” to regulate immigration as declared in DeCanas v. Bica.  S.B. 1070 most definitely is not a narrow business licensing statute (even with the mandatory use of E-Verify thrown in) like the Legal Arizona Workers Act, but is a much broader omnibus immigration enforcement law.

Johnson also writes about how one thing the high court case won’t be addressing is the civil rights/racial profiling aspect, one of the most contentious issues surrounding SB 1070 and at the core of the controversy over “reasonable suspicion.” He writes:

This is in part because the Obama administration framed the primary constitutional challenge in United States v. Arizona on federal preemption grounds; the complaint of the United States tellingly fails to include an equal protection claim based on the possible racial profiling impacts of S.B. 1070.  The Supremacy Clause and federal preemption arguments are cleaner arguments, avoiding the claim that the administration is playing the proverbial “race card.”

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