High Court Appears to Lean toward Arizona in Immigration Law Dispute

(by Bill Mears, CNN.com) — Parts of Arizona’s sweeping immigration law received a surprising amount of support from the…Supreme Court Wednesday.

States throughout the country considering their own tough immigration laws are closely following the proceedings over what has become a thorny issue.

Fed up with illegal immigrants crossing from Mexico – and what they say is the federal government’s [refusal] to stop it – legislators in Arizona passed a tough illegal immigration law. The federal government sued, saying that Arizona overreached.

“If, in fact, somebody who does not belong in this country is in Arizona, Arizona has no power?” asked Justice Antonin Scalia. “What does sovereignty mean if it does not include the ability to defend your borders?”

The Obama Administration’s Solicitor General Donald B. Verrilli Jr. said the federal government has limited resources and should have the right to determine the extent of calls it gets about possible illegal immigrants.  “These decisions have to be made at the national level,” he said.

But even Democratic-appointed justices were uncertain of that.  Liberal Justice Sonia Sotomayor told the federal government’s lawyer that key parts of his arguments were “not selling very well.” She told Verrilli: “I’m terribly confused by your answer,” and went on to say that the federal government can always decline to pick up illegal immigrants when Arizona officials call.]

…While intense oral arguments took place among the justices, outside there were competing demonstrations on the courthouse plaza, with the law’s opponents saying it promotes discrimination and racial profiling. Backers say illegal immigration has created public safety and economic crises.

At issue is whether states have any authority to step in to enforce immigration [laws when the federal government refuses to do so] or whether that is the exclusive role of the federal government.

Paul Clement, lawyer for Arizona, told the high court the federal government has long failed to control the problem, and that states have discretion to assist in enforcing immigration laws.

But Solicitor General Donald Verrilli,…countered that assertion, saying immigration matters are under the federal government’s exclusive authority and state “interference” would only make matters worse.

Several other states followed Arizona’s lead by passing laws meant to deter illegal immigrants. Similar laws are under challenge in lower courts in Georgia, Alabama, Utah, Indiana and South Carolina. Arizona’s appeal is the first to reach the Supreme Court.

Arizona is the nation’s most heavily traveled corridor for illegal immigration and smuggling. …

Federal courts had blocked four elements of [Arizona’s] Support Our Law Enforcement and Safe Neighborhoods Act, known as SB 1070.  The four Arizona provisions on hold are:

• A requirement that local police officers check a person’s immigration status while enforcing other laws if “reasonable suspicion” exists that the person is in the United States illegally.
• A provision authorizing police to arrest illegal immigrants without warrant where probable cause exists that they committed any public offense making them removable from the country.
• A section making it a state crime for a non-citizen to be without registration papers or other government identification
• A ban on illegal immigrants to apply for, solicit or perform work. That would include those standing in a parking lot who “gesture or nod” their willingness to be employed.

Although the specific question before the high court relates to the law’s enforcement, the justices could use the appeal to address the broader constitutional questions. …

“I’d like to clear up at the outset what it’s not about,” Chief Justice Roberts said. “No part of your argument has to do with racial or ethnic profiling, does it?” Verrilli readily agreed.

Later Chief Justice Roberts raised more serious concerns. When enforcing other law, “the person is already stopped for some other reason. He’s stopped for going 60 in a 20 (mph zone). He’s stopped for drunk driving. So that decision to stop the individual has nothing to do with immigration law at all. All that has to do with immigration law is whether or not they can ask the federal government to find out if this person is illegal or not, and then leave it up to you,” Roberts said to Verrilli. “It seems to me that the federal government just doesn’t want to know who is here illegally or not.”

Justice Anthony Kennedy echoed the thought, suggesting the federal government is not doing enough on illegal immigration, which might give states discretion to intervene. Suppose, he offered, “the state of Arizona has a massive emergency with social disruption, economic disruption, residents leaving the state because of a flood of immigrants. Let’s just assume those two things. Does that give the state of Arizona any powers or authority or legitimate concerns that any other state wouldn’t have?”

Kennedy was echoing what the state had long been arguing, and he later suggested there is such authority.

Verrilli argued the law would hurt Washington’s ability to carry out diplomatic relations with other nations, noting, “We have very significant issues on the border with Mexico.”

“Well, can’t you avoid that particular foreign relations problem by simply deporting these people?” Justice Scalia asked. “Free them from the jails and send them back to the countries that are objecting. What’s the problem with that?  We have to enforce our laws in a manner that will please Mexico. Is that what you’re saying?”

The Justice Department said Arizona’s population of 2 million Latinos includes an estimated 400,000 there illegally, and 60% to 70% of deportations or “removals” involve Mexican nationals.

…..

The outcome of the Arizona appeal could set important precedent on similar laws pending across the country.

The case is Arizona v. U.S. (11-182) and is to be the last argued before the high court this term. A ruling could come in late June, just before the justices recess for the summer.

[NOTE:  Justice Elena Kagan [recused herself from] this case because before taking the bench last year, she had been involved in the administration’s initial legal opposition to the law as solicitor general.]

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