Supreme Court Brief on SB 1070: Arizona Seeking Confrontation, not Cooperation

When Arizona Governor Jan Brewer wagged her finger in President Obama’s face at a Phoenix airport earlier this year, she may have been seeking to score political points with the White House’s ideological opponents. What the governor may not have realized, however, is that she was giving the Obama administration the photographic equivalent of its closing argument in the legal challenge to SB 1070—namely, that Arizona is more interested in confronting the federal government than cooperating with it.

Filed approximately one month before oral arguments on April 25, the administration’s brief powerfully argues that SB 1070 represents a simple disagreement with federal immigration policy, not a good faith attempt to assist federal immigration authorities. As the brief bluntly puts it, “Arizona’s attempt to set its own policy for enforcement of federal immigration law is not cooperation; it is confrontation.” The brief said that while the federal government welcomes “genuine cooperation” from the local authorities, measures like SB 1070 create irreconcilable conflicts with federal immigration enforcement. For example:

• By requiring state and local officers to investigate the immigration status of all stopped persons where “reasonable suspicion” exists that they are in the country unlawfully, SB 1070 may result in prolonged detention of both U.S.citizens and immigrants with federal permission to be or remain in the United States.
• Even though federal law does not make unlawful presence a criminal offense, undocumented immigrants may be imprisoned under SB 1070 for failing to carry “registration” papers from the federal government.
• While Congress deliberately decided to impose only civil penalties (i.e. deportation) on foreign visitors who work without authorization, SB 1070 permits such immigrants to be imprisoned for up to six months simply for soliciting work.
• By allowing law enforcement agents to unilaterally arrest persons convicted of “removable” offenses, SB 1070 will allow local police to harass or punish legal immigrants and other individuals with federal permission to remain in the country.

In addition to citing SB 1070’s numerous conflicts with federal immigration law, the administration’s brief also refuted the contention in Arizona’s brief that it should have greater leeway to create its own immigration policies by virtue of its status as a border state. In a clever legal tactic aimed at conservatives like Justice Antonin Scalia, the government cited an argument in one of the Federalist Papers—articles written by the Framers in defense of the Constitution—that the federal government should have exclusive power over international affairs precisely because states along the border would otherwise be free to incite conflicts with other nations.

While states may be justifiably frustrated with Congress’ failure to reform the immigration laws, the administration’s brief makes clear why they should not be free to create their own immigration policies. No matter their intentions, state politicians like Governor Brewer are powerless to solve the underlying problems of our immigration predicament—problems that only Congress can solve. Even if passed in the name of “cooperation,” laws like SB 1070 only add an additional layer of dysfunction to a system that is already broken.

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