Arizona Bravely Defends SB 1070 Before the Supreme Court

May 2012

Outcome Will Ricochet Around the Nation

The U.S. Supreme Court heard oral arguments on April 25 in a case involving Arizona’s immigration enforcement law, known as SB 1070. SB 1070 was approved by the Arizona Legislature and signed into law by Gov. Jan Brewer in 2010 in response to the federal government’s failure to effectively enforce immigration laws. Four provisions of SB 1070 have been blocked from taking effect by a federal district court and by the Ninth Circuit Court of Appeals.

Arizona appealed the Ninth Circuit’s ruling to the Supreme Court and a decision is expected in June. The forthcoming Supreme Court decision will have far-reaching consequences, clarifying what steps state and local governments may take to deter illegal immigration.

U.S. Solicitor General Donald Verrilli, who argued on behalf of the Obama administration, urged the justices to declare SB 1070 unconstitutional because it conflicts with the federal government’s exclusive authority over immigration. Verrilli contended that Arizona’s enforcement efforts would interfere with the Obama administration’s ability to set its own priorities for immigration enforcement. Attorney Paul Clement, representing the state of Arizona, countered that in enacting SB 1070 Arizona was merely “borrow[ing] federal standards” in an effort to carry out laws that the Obama administration refuses to enforce.

The most important of the provisions before the Court is one that requires Arizona police to determine the immigration status of someone who has been lawfully stopped if the officer reasonably suspects that person is in the country illegally. On that key issue, the eight justices who will be deciding the case (Justice Elena Kagan recused herself because of her previous role in the Obama administration) seemed highly skeptical of the administration’s arguments.

Chief Justice John Roberts flatly rejected the notion that SB 1070 infringes on federal authority over immigration. “It is not an effort to enforce federal law. It is an effort to let you know about violations of federal law. Whether or not to enforce them is still entirely up to you,” he said. 

In his questioning of Verrilli, the Chief Justice implied that the Obama administration’s objections to SB 1070 are driven more by politics than constitutional concerns. “It seems to me that the federal government just doesn’t want to know who is here illegally or not,” Roberts said. Roberts’ skepticism was echoed by Justice Anthony Kennedy, often the swing vote on the Court, who asked incredulously, “You’re saying the government has a legitimate interest in not enforcing its laws?”

Even the more liberal justices appeared to be unimpressed with the Obama administration’s objections to having local police identify illegal aliens. Justice Stephen Breyer, a Clinton appointee, noted that there are “two provisions [in federal law] that say any policeman” can verify the immigration status of someone he reasonably suspects is here illegally. Justice Sonia Sotomayor, an Obama appointee, openly chastised Verrilli for the weakness of his arguments. “You can see it’s not selling very well. Why don’t you try to come up with something else?” she suggested.

Justice Antonin Scalia, a Reagan appointee, took issue with Verrilli’s argument that Arizona’s law could complicate relations with foreign governments.  “So we have to enforce our laws in a manner that will please Mexico?” he asked rhetorically.

Other provisions of SB 1070 to be decided by the Supreme Court include ones that make it a state violation for aliens not to carry their registration documents, even though federal law already requires them to do so. Another would make it a state misdemeanor for illegal aliens, who are barred from employment under federal law, to solicit work in public places. A third provision authorizes police to conduct a warrantless arrest of an individual if the officer has probable cause to believe the individual has committed a removable offense.

When it is handed down, the ruling will have implications beyond Arizona. Similar laws have already been approved in Alabama, Georgia, Indiana and South Carolina and a favorable ruling by the Supreme Court will likely result in more states adopting enforcement legislation.