WASHINGTON –– Arizona’s attempt to manage its population of undocumented immigrants by stepping into enforcement of federal laws led the Supreme Court April 25 to try to parse where the lines lie between state and federal authority.
During oral arguments in the case Arizona v. United States, questions from the justices focused largely on sections of the 2010 law that require law enforcement officers to investigate the immigration status of anyone they stop for any reason if the officer suspects the person might not be in the country legally.
Central to the case being made in oral arguments by Arizona’s attorney, former U.S. Solicitor General Paul Clement, was his repeated insistence that the state is not seeking to do anything more than enforce federal laws that the U.S. government isn’t managing. He argued that the law provides only for possible immigration law violators to be held to give the federal government the chance to step in and prosecute them.
“There is no interference with enforcement priorities by simply giving the federal government information on which to bring their enforcement priorities to bear,” Clement said.
Clement also suggested that the provision making it a state crime to seek work without government authorization was no more than an extension of what Congress did in imposing sanctions on employers who hire undocumented workers.
Meanwhile, outside the court, a multi-day prayer vigil sponsored by faith-based organizations evolved into a news conference, then into a rally on the sidewalk and a protest walk around the court building.
Four provisions of the law were challenged by the Obama administration, under the argument that immigration laws and enforcement are the purview of the federal government and that Arizona’s law, S.B. 1070, takes that federal authority unto itself. All four challenged provisions have been blocked pending court review.
Solicitor General Donald B. Verrilli, arguing for the Justice Department, disputed Clement’s attempts to portray the Arizona law “as an aid to federal immigration enforcement,” saying “the very first provision of the statute declares that Arizona is pursuing its own policy of attrition through enforcement and that the provisions of this law are designed to work together to drive unlawfully present aliens out of the state.”
Questions from the justices suggested some strong doubts about the arguments being made by both sides. Justice Antonin Scalia proposed that perhaps Arizona should have the right to close its borders to all immigrants if it chooses. And Justice Sonia Sotomayor warned Verrilli to stop trying to make the same point about it being wrong for the state to require all law enforcement officers to cooperate in the immigration effort. “You can see it’s not selling very well.”
Sotomayor at another point seemed to be trying to help Verrilli emphasize that the 10-minute background check that Clement described was for some people much more complicated. People who lack the kind of documentation of legal status required by the law may still be in the country legally, Verrilli noted.
“If you have come into the country unlawfully, but you have a pending application for asylum, a pending application for temporary protective status because you would have to be removed to a country to which you can’t be removed because of the conditions in the country,” Verrilli said, “if you have a valid claim for relief under the Violence Against Women Act based on your treatment, if you have a valid claim for relief because you are a victim of human trafficking, if you have a valid claim for relief because you are the victim of a crime or a witness to a crime, all of those persons are in technical violation” of federal law, but entitled to remain in the country.
S.B. 1070 served as a model for laws passed by other states in the past couple of years, adding to the importance being placed on the outcome of this case. The Supreme Court’s ruling on these four provisions is unlikely to resolve even that state’s situation completely, however, as evidenced by Chief Justice John Roberts’ opening question to Verrilli, clarifying that the federal government’s case is not based on racial or ethnic profiling claims. Verrilli confirmed that. But that area of litigation still could reach the high court through other challenges.
The court heard the case without the participation of Justice Elena Kagan, who recused herself, presumably because she was U.S. solicitor general when the administration decided to sue Arizona over S.B. 1070. Without a ninth vote among the court, a 4-4 ruling would mean that lower court rulings blocking these provisions would stand.
At the news conference before the hearing, several Arizonans spoke, including 75-year-old Jim Shee, a plaintiff in the case who said he and his Japanese-American wife never leave home without their passports now, because of being stopped for questioning since the new law passed. Dulce Matuz, 27, president of the Arizona DREAM Act Coalition, is a recent Arizona State University graduate who said her real estate license was revoked because she’s not in the country legally. She was recently named one of Time Magazine’s 100 Most Influential People.
Cardinal Roger M. Mahony, retired archbishop of Los Angeles, said he and other religious leaders were there “because we see our immigrant brothers and sisters in a difficult situation.” He said many children have told him they start each morning in fear – worried that their parents might be picked up over immigration status and never come back.
“We can’t have that kind of fear,” he said.