Arizona Immigration Law to Be Heard by Supreme Court

By Josh Gerstein, Politico

13 December 11

he Supreme Court on Monday agreed to consider whether a law Arizona passed last year cracking down on illegal immigration violates the Constitution by intruding on the prerogatives of the federal government.

The new high-profile platform for the continuing legal fight over immigration-related state laws has the potential to inflame the issue in the 2012 presidential campaign - a development that could benefit President Barack Obama's appeal among Latinos, but hurt his standing with swing voters who tend to be broadly supportive of legislation to rein in illegal immigration.

The Obama administration, which persuaded lower courts to block key parts of the Arizona law, known as S.B. 1070, had asked the Supreme Court not to take up the case at this time. Still, White House press secretary Jay Carney told reporters Monday, "You know the president's position and the administration's position. We look forward to arguing it in this case."

The state of Arizona, which was on the losing end of the lower-court rulings, petitioned the justices to step in.

"I was stunned at the audacity of the Obama administration to file suit against an individual state seeking to safeguard its people," Arizona Gov. Jan Brewer said in a statement Monday. "That shock turned to outrage as the federal government proceeded to file suit against three more states - South Carolina, Alabama and now Utah - that followed Arizona's lead. Arizona has been more than patient waiting for Washington to secure the border. Decades of federal inaction and misguided policy have created a dangerous and unacceptable situation, and states deserve clarity from the Court in terms of what role they have in fighting illegal immigration."

The Arizona law requires local police to try to determine the immigration status of people they detain during a traffic stop or for questioning if there's a "reasonable suspicion" that those individuals are in the U.S. illegally. Under the measure, police are required to determine whether someone arrested is a citizen or legal resident before releasing him or her. The law also demands that foreigners have immigration papers in their possession at all times.

The fight over the Arizona immigration law is just one of several politically sensitive cases the high court is set to wrestle with in the upcoming presidential election year, including the health care law Congress passed last year and a battle over redistricting of congressional seats in Texas. The same conservative attorney is lead counsel in all three cases: Bush administration solicitor general Paul Clement.

"The court has its hand wrapped around both the issues and the machinery of the 2012 election right now, and the election itself is indeed in full swing," said Tom Goldstein, who frequently argues cases before the Supreme Court. "It is all coincidence. These are all serious cases with strong arguments for the court to review. … It's not at all surprising because the biggest issues in the country are also the questions where the justices are most likely to step in. They're not the junior varsity."

Goldstein said the justices certainly aren't hesitating to weigh in on cases that have political overtones. "It's clear they're not shying away from cases with political saliencies. … They're not ducking anything," he said.

Elizabeth Wydra of the liberal Constitutional Accountability Center said in a statement that with the court's decision to review the immigration case, "there is no question that the Supreme Court's 2012 Term will be a blockbuster. The constitutional challenge to the Affordable Care Act is already on the Court's docket, and a challenge to Texas's affirmative action policies is waiting in the wings - add to that a major immigration decision that implicates the federal-state balance of power, and you've got one of the most momentous Terms in recent Court history."

Several other states have followed Arizona's lead and enacted similar immigration-related legislation - to a greater or lesser degree. In recent months, the Justice Department has hit three of those states - Alabama, South Carolina and Utah - with lawsuits claiming their laws usurp federal authority.

The Supreme Court indicated that it was accepting the Arizona case via a set of orders released on the Internet Monday morning about a half-hour before the customary 10 A.M. release time, apparently due to a Web glitch.

Justice Elena Kagan, who was serving as solicitor general when the Arizona law was being challenged in the lower courts, did not take part in the decision to take the case. Such a statement generally means that the justice involved will also abstain from ruling on the merits of the issue when it is decided by the court.

In May, the Supreme Court, by a 5-3 vote, upheld another immigration-related Arizona law that threatened to revoke the business licenses of employers who repeatedly hired illegal immigrants. The Obama administration argued against that law, which was signed by Secretary of Homeland Security Janet Napolitano when she was governor of Arizona in 2007.

Goldstein said the case the court agreed to take Monday presents a broader set of issues.

"Last time, [the justices] were asked to interpret a very specific provision," he said. "This is the question - more broadly - of how active states can get in enforcing immigration law because of the concern that the federal government, whether purposely or for lack of resources, is not getting the job done."