Legal profs see uphill battle for SB 1070 in high court

PHOENIX — When Paul Clement walks into the U.S. Supreme Court on Wednesday, he's going to try to convince at least five justices that Arizona has an inherent right to enforce federal immigration laws.

He needs them to believe that to get them to overturn lower court decisions which have so far concluded that key provisions of SB 1070, the state's 2010 comprehensive measure aimed at illegal immigrants, are pre-empted by federal law.

Three law professors say Clement could have an uphill fight.

Paul Bender from Arizona State University College of Law said that, everything else being equal, the conservative justices would tend to side with the state in any legal battle. And the liberal branch of the court is short one of its players, with Elena Kagan having recused herself since she was federal solicitor general in the Obama administration, which is suing the state.

But this isn't a normal case.

“This is not a question of states' rights versus individual rights,'' said Gabriel “Jack'' Chin of the University of California at Davis.

“This is a conflict between states' rights and traditional federal authority. There, it's not clear the traditional conservatives are interested in undermining federal authority in foreign policy and national security.''

That's precisely what Solicitor General Donald Verrilli Jr. has argued, with the Obama administration even presenting arguments from foreign governments on how Arizona's law interferes with their relations with the United States.

That also differentiates this case markedly from the legal arguments over the federal Affordable Care Act, one that, curiously enough, pitted the same two attorneys arguing this case against each other.

SB 1070 is designed to give police more power to detain and arrest illegal immigrants. But a federal judge blocked the state from implementing several sections, a decision upheld by the 9th U.S. Circuit Court of Appeals. (See sidebar below)

Robert Smith of Suffolk University Law School said it's important to remember that this case is not about whether the law results in discrimination. That issue is not before the court.

“The issue is pre-emption,'' he said.

The state is arguing that nothing in SB 1070 conflicts with federal laws. In fact, the claim is that the state is just helping the federal government to enforce its laws.

Smith said Congress did anticipate state-federal cooperation. But he said federal law spells out that is supposed to be in the context of an actual agreement between the federal government and state or local agencies, known as 287(g) agreements.

“When you reach those cooperative agreements, you agree that the attorney general and the Department of Justice are monitoring and supervising what you do,'' Smith said. “Here, Arizona is seeking a much more autonomous role.''

Chin said it's even more basic than that.

“One of the ways you can tell when you're not cooperating is when the attorney general sues you to get you to stop doing what you're doing.”

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Here are the four provisions of SB 1070 being litigated before the U.S. Supreme Court as well as comments from the 9th U.S. Circuit Court of Appeals ruling finding them to be preempted by federal law.

In each of the four cases, the court said the law has a "detrimental effect on foreign affairs, and its potential to lead to 50 different state immigration schemes piling on top of the federal scheme.’’ The judges also had specific comments about the four provisions.

• Section 2(B) requires police to try to determine the immigration status of someone they have already stopped if there is "reasonable suspicion’’ that person is unlawfully in the country. It also requires determination of immigration status of anyone placed under arrest.

"By imposing mandatory obligation on state and local officers, Arizona interferes with the federal government’s authority to implement its priorities and strategies in law enforcement, turning Arizona officers into state-directed Department of Homeland Security agents. As a result, Section 2(B) interferes with Congress’ delegation of discretion to the Executive branch in enforcing the Immigration and Naturalization Act.’’

• Section 3 makes it a state crime for someone not in this country legally to fail to carry federally issued registration cards.

"Nothing in the text of the Immigration and Naturalization’s registration provisions indicates that Congress intended for states to participate in the enforcement or punishment of federal immigration rules.’’

• Section 5(C) makes it a crime for an undocumented worker to apply for work in a public place or perform work as an employee or independent contractor in Arizona.

"Congress did not intend to permit the criminalization of work ... as a method of discouraging immigrant employment. By criminalizing work, SB 1070 Section 5(c) constitutes a substantial departure from the approach Congress has taken to battle this particular problem.’’

• Section 6 lets police make an arrest without a warrant if there is "probable cause’’ they committed an offense that makes them removable from the country.

"Section 6 interferes with the federal government’s prerogative to make removability determinations and set priorities with regard to the enforcement of civil immigration laws.’’

Capitol Media Services