WASHINGTON -- The Supreme Court today considers whether Arizona's controversial immigration law provides a legitimate helping hand or acts as an unconstitutional agent of chaos to federal immigration policy. The blockbuster case, Arizona v. United States, will be the court's last oral argument until October -- a fitting end to an extraordinarily high-profile term.
The immigration saga began two years ago, when Arizona Gov. Jan Brewer signed into law the Support Our Law Enforcement and Safe Neighborhoods Act, commonly known as S.B. 1070. The law's aggressive means of carrying out the state's "attrition by enforcement" public policy drew immediate criticism from the Obama administration and civil rights groups -- and imitation from Alabama, Georgia, Indiana, South Carolina and Utah.
The Department of Justice sued to stop S.B. 1070 from taking effect, successfully blocking in the lower courts four of the law's provisions as invasions of federal government authority to regulate immigration. Two of those provisions make it crimes for undocumented immigrants to be in Arizona and to seek work with employers in the state. The other two blocked provisions required law enforcement officers to demand immigration papers from anyone stopped, detained or arrested if they reasonably suspect the person has committed a deportable offense, and authorized warrantless arrests of anyone an officer has probable cause to believe is in the country illegally.
According to Arizona, these provisions are the state's "efforts at cooperative law enforcement" to support the federal government's immigration regulations. The U.S., however, rejects this characterization and says the Constitution and Congress have preempted states from pursuing their own enforcement policies.
"A scheme that depends on national uniformity cannot coexist with a patchwork of different state regimes, whether that patchwork involves 50 different decision-makers, 50 different remedies, or 50 different substantive rules," wrote Solicitor General Donald Verrilli, who on Wednesday will again face his adversary from last month's health care cases, D.C. superlawyer Paul Clement.
Neither side will overtly focus on racially charged elements of the law that have driven much of the public attention to S.B. 1070. The lawsuits brought by civil rights groups claiming that the law unconstitutionally targets Hispanics in violation of their equal protection and due process rights remain pending until the justices determine the more technical preemption analysis.
A win for Arizona, then, could prove fleeting in the long run in the face of future civil rights challenges, should the court unblock any of the four provisions. Because Justice Elena Kagan is sitting out the case, presumably because she worked on it when she was solicitor general, there is a chance the court will split evenly, which would result in all four provisions remaining blocked.
Such a result, however, would set no nationwide precedent, meaning that the full court soon could very well find itself taking on challenges to similar laws arising out of the five other states that followed Arizona's lead.