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Supreme Court Grants Cert in Case Challenging Arizona Immigration Law

Yesterday the Supreme Court agreed to hear the case of Arizona v. United States, in which the validity of Arizona’s draconian immigration law is at issue.

Last year, Arizona passed S.B. 1070, a law designed to make it all but impossible for illegal immigrants to live or work in the state. A number of states have since passed copycat laws, in response to what they view as the federal government’s inadequate efforts to control illegal immigration. Most notoriously, Alabama has passed a law with such far-reaching consequences that even the state attorney general has called for revisions.

In this suit, the United States has sought to enjoin enforcement of Arizona’s law as preempted under the Supremacy Clause of the Constitution. In particular, the U.S. has challenged four provisions of the law as incompatible with federal immigration laws and policies. The challenged provisions (1) require that state police ascertain the immigration status of any individual they stop or arrest if they have reasonable suspicion to believe that the person is here illegally (additionally, the person, once arrested, cannot be released until the federal government verifies his or her legal status); (2) make it a violation of law for a person to fail to obtain and carry legal immigrant papers; (3) make it a misdemeanor for unlawful aliens to work or to try to work; and (4) authorize warrantless arrests for individuals who the state police have probable cause to believe has committed any act anywhere that would make them deportable under federal law.

While Arizona maintains that its law falls under the “cooperative” state and local efforts authorized by the Immigration and Naturalization Act (“INA”), the U.S. argues that the Arizona law is clearly meant to supplant federal law and policy, not cooperate with it. Indeed, in Arizona Governor Jan Brewer’s signing statement, she specifically noted the federal government’s “misguided policy” on immigration enforcement.

The district court granted an injunction blocking the enforcement of all four provisions of Arizona’s law, and the Court of Appeals for the Ninth Circuit affirmed. Arizona has now appealed to the Supreme Court.

The U.S. urged the Court to reject the case for review as premature until other courts of appeal have had an opportunity to consider other similar state laws. For example, legal challenges have been raised to provisions of Alabama’s parallel law. Yesterday, a federal district court enjoined enforcement of a provision of that law, known as H.B. 56, which criminalizes “business transactions” between state officials and people who cannot prove lawful immigration status. As in Arizona v. United States, the district court’s ruling in that case was based on the plaintiffs’ likelihood of success on their claims of preemption. Undoubtedly, Alabama will appeal that injunction to the Court of Appeals for the Eleventh Circuit, but because the Alabama and Arizona state laws differ in their specifics, the Supreme Court’s ruling in the Arizona case is likely not to resolve the issues in the Alabama case. Nonetheless, the Supreme Court has chosen to weigh in on yet another controversial and political topic in an election year.

If the Supreme Court sides with Arizona, not only will it disrupt the federal government’s ability to maintain a uniform and effective federal immigration policy, but potentially millions of hard-working, law-abiding immigrant families with American children will be forced to live in the shadows, or be driven from the states where they have made valuable contributions to the community and the economy.