FAQ On The Legal Issues In Arizona v. United States
By Raisa Camargo, Voxxi
The high court is considering the constitutionality of four key provisions of the law and is expected to issue a ruling in June, just before both national parties convene to formally nominate Barack Obama and Mitt Romney as their respective presidential candidates.
VOXXI cuts through the emotional rhetoric and talks to Linton Joaquin, general counsel for the National Immigration Law Center, to understand the legal issues and the implications for the rest of the country.
VOXXI: What are the specific legal challenges before the Supreme Court?
Joaquin: The Court will determine whether four provisions of an Arizona law, SB 1070, should continue to be enjoined because they are preempted by the U.S. Constitution and federal law, or should be allowed to go into effect. The four provisions are:
- a provision that requires local law enforcement to verify immigration status in any lawful stop, detention, or arrest, including for violation of a municipal ordinance such as making excessive noise, any time they have “reasonable suspicion” that someone is unlawfully present – this is often referred to as the “show me your papers” provision — and of course U.S. citizens as well as immigrants would need to be able to demonstrate their status were this provision to take effect
- a provision that makes it a state crime for a non-citizen to willfully fail to register with federal immigration authorities, or to fail to carry proof of such registration at all times
- a provision that makes it a state crime to work without work authorization, which is not a crime under federal law
- a provision that authorizes local police to arrest a person without a warrant where the suspect has committed an offense in another state that makes the individual “removable” under federal immigration law – an extraordinarily complicated legal determination.
VOXXI: Explain the concept of “preemption” and how that applies to Arizona vs. United States.
Joaquin: State laws are “preempted” and, therefore, invalid if they legislate in an area that the U.S. Constitution reserves for the federal government, or in which Congress has fully occupied by enacting comprehensive legislation, or if they conflict with or pose an obstacle to the realization of the purpose of a federal law. All of these different bases for preemption apply to SB 1070, since the Constitution reserves for the federal government the regulation of immigration. The comprehensive immigration statutes and regulations that Congress has enacted leave no room for states to create their own immigration enforcement regimes, and the enforcement scheme established by Arizona conflicts with the priorities for immigration enforcement established by Congress and federal immigration authorities.
VOXXI: If the Supreme Court decides that Arizona’s law is “preempted” by existing federal immigration laws, what legal effect would this have on states with similar measures?
Joaquin: The Court’s decision will provide authoritative guidance to the federal courts that are considering whether similar measures in Utah, Indiana, Georgia, Alabama and South Carolina are preempted. Each of these state laws has some differences from the Arizona law, but it is certain that all of these courts will look to the Supreme Court’s decision and analysis in resolving the preemption issues in these cases.
VOXXI: In the scenario that the Supreme Court rules against Arizona, what should we expect in terms of state and federal jurisdiction?
Joaquin: In that case, the ruling would reaffirm the longstanding recognition of the preeminence of federal authority and jurisdiction over the regulation and control of immigration.
Related story: Immigration timeline: From Arizona to U.S. Supreme Court
VOXXI: More than 350 individuals and organizations have filed amicus briefs on behalf of the United States and 23 have been filed on behalf of Arizona. To what extent will civil rights testimony bear on the justices’ decision?
Joaquin:It is foolish to predict how the Court will rule in a case, much less to anticipate the extent a particular amicus brief may influence the decision, and I won’t attempt to do so. However, it is undeniable that the amicus briefs on the side of United States – from civil rights organizations, law enforcement officials and organizations, former U.S. foreign relations and defense officials and former INS commissioners from both Republican and Democratic administrations, former state attorneys general, local governments, business and labor organizations, members of Congress, and foreign governments – represent a much broader spectrum of constituencies than the briefs filed on behalf of Arizona.
VOXXI: Who has filed a separate civil rights lawsuit against the Act? And can you explain the legal process for the civil case and how the decision made by the Supreme Court justices in June might impact the alternative lawsuit?
Joaquin: NILC is co-lead counsel, with the ACLU Immigrants’ Rights Project and the Mexican American Legal Defense and Educational Fund (MALDEF), and co-counsel with other civil rights organizations, in a class action lawsuit on behalf of a broad range of individuals and organizations challenging SB 1070. Our case includes not only preemption claims, but also claims that the Arizona law violates the Fourth Amendment right to be free of unreasonable searches and seizures, the First Amendment right of free speech, and the Fourteenth Amendment guarantees of equal protection and due process. Among other things, these claims address the discriminatory motivation and impact of the law, which if allowed to go into effect, would cause Arizonans who look or sound ‘foreign’ could be asked for their papers at any given moment – and punished for failing to produce them.
Our case was filed before the U.S. case, and preliminary injunction motions in both cases were argued on the same day. The district court issued an injunction in the U.S. case, and denied our motion as no longer needed since the law was enjoined. Our case is still pending before the district court, and there are some motions and discovery underway, but resolution of the merits of our case is, with one exception, waiting for the Supreme Court decision. The exception is that in January we brought a motion to enjoin the day labor restrictions of SB 1070, which were not addressed in the U.S. case. Last month the district court issued an injunction of those provisions, and Arizona has appealed that decision to the Ninth Circuit Court of Appeals.
The Supreme Court’s ruling will apply to the preemption claims in our case as well. The other claims in our case are not before the Court and would not be addressed in that ruling.
VOXXI: Which legal arguments are being presented the day of the hearing and what should we expect in terms of which oral arguments will be heard?
Joaquin: Again, the only issue before the Court is whether these provisions of SB 1070 are preempted. Because Arizona is appealing, it will argue first, and likely will argue as it has in its briefs that SB 1070 is consistent with federal law and that the state is simply “cooperating” with federal immigration enforcement. The U.S. will argue second, and will likely argue that the Arizona law is an independent enforcement scheme that far exceeds the forms of cooperation permitted by federal law, and that it conflicts with federal law and improperly burdens federal immigration enforcement efforts. Arizona likely will reserve some time to respond after the U.S. argument.
VOXXI: What if it’s a split decision? Is Elena Kagan’s recusal problematic for this reason?
Joaquin: In the event of a 4-4 split among the Justices, there would be no Supreme Court decision and the decision of the U.S. Court of Appeals for the Ninth Circuit upholding the injunction would stay in place.
VOXXI: What power does Congress have in terms of overriding the Supreme Court decision?
Joaquin: Since a major issue in the case is whether SB 1070 conflicts with federal law, and Congress can change federal law, Congress has considerable, though not unlimited, power to, in effect, override a decision. That said, in recent years, for political reasons, Congress has not been able to make major changes in immigration law.
Raisa Camargo is a staff writer at Voxxi.
[Photo by openDemocracy]