January 10, 2012
Arizona v. U.S. makes for a somewhat difficult prediction.
The question presented to the Supreme Court is simply whether four specific provisions of Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act are preempted by federal law.
Two of the provisions impose criminal sanctions against unlawful aliens – one for failing to complete or carry alien registration documents and the other for applying for work in the U.S.
The other two provisions empower state and local law enforcement to detain or arrest suspected unlawful aliens (sometimes without a warrant).
Existing statutory and case law on federal preemption and immigration heavily weighs the issues in favor of the federal government’s challenge.
Despite the legal question seeming relatively easy, the case hits a snag with the presence of two significant ideological divides – one legal (states’ rights) and one political (illegal immigration).
Aside from that complication, there’s the factor of Justice Kagan’s recusal, which opens the possibility of a messy 4-4 split.
Luckily, we have Chamber of Commerce v. Whiting as a point of reference.
Whiting is useful because it is another Supreme Court case about whether or not an Arizona immigration law is preempted; furthermore, Justice Kagan also recused herself in Whiting.
However, there are some key differences between Whiting and Arizona v. U.S.
Specifically, the law in question in Whiting was a civil penalty against businesses who hired undocumented workers.
Legally, this distinction is important because federal immigration violations are civil, rather than criminal matters, and because regulation of business licenses are traditionally within the states’ police powers.
These aspects make it a much closer call on the legal side than Arizona.
Pragmatically, the impact of the Court’s Whiting decision is much narrower than a potential Arizona decision.
For instance, the Whiting decision upholding Arizona’s law applied only to a small subsection of the federal Immigration and Reform Act.
By contrast, the areas of federal law claimed to be in conflict with Arizona’s law in Arizona v. U.S. are far broader, including sections of the Constitution itself.
In fact, a decision to uphold Arizona’s law will have a major impact on immigration jurisprudence, and will also likely affect federal preemption law such that federal preemptive clout will be significantly eroded.
As alluded to in an earlier post, Roberts’s agreement rate with Alito is consistently, or at least among, the highest of any two Justices.
Thus, if Roberts votes to strike down Arizona’s law, Alito will likely do the same.
Whiting helps place the remaining Justices as well.
The three liberals remaining after Kagan’s recusal – Sotomayor, Ginsburg, and Breyer – voted to strike down Arizona’s law then, and will very likely do the same now.
As for Justice Kennedy, his questions and comments during Whiting’s oral argument led many to believe that he would also strike down the law; however, he ended up doing just the opposite.
Whether he didn’t feel strongly enough about the issue to create a 4-4- split is unknown, but he regardless appears to be suspicious of state attempts to regulate immigration law, making him very likely to vote to strike down Arizona’s law in the current case.
Conversely, Justice Scalia’s comments during Whiting’s oral argument exhibit some level of support for states to take immigration matters into their own hands when they feel the Federal Government isn’t doing enough.
Seeing that Justice Thomas is still taking a vow of silence during oral arguments, the only insight into Thomas’s decision come from his Whiting vote, and his ideology.
He voted with the majority in Whiting, and he is generally very much in favor of states’ rights; accordingly, he will likely vote to uphold Arizona’s law.
The final verdict?
Although I’m not quite as certain with this one as I am with some of the earlier health care law predictions I’ve made, I believe the law will be struck down 6-2.
Whether federal immigration laws preclude Arizona’s efforts at cooperative law enforcement and impliedly preempt four provisions of S.B. 1070 on their face.
Lower Court’s Decision
Federal law preempts Arizona’s laws
AFFIRM 6-2 (Majority: Roberts, Alito, Kennedy, Ginsberg, Breyer, and Sotomayor; Dissent: Scalia and Thomas; Recuse: Kagan).
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