Once again raising the stakes in what may be a historic term, the U.S. Supreme Court on Monday agreed to decide whether Arizona’s tough anti-immigration law can be enforced or is in fatal conflict with federal immigration law.
The justices’ decision to review four key provisions in Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act, commonly known as S.B. 1070, comes less than three days after the Court agreed to review controversial Texas redistricting plans that have been challenged as reducing the influence of minority voters. The three Texas cases will be argued on Jan. 9.
In addition to the immigration and redistricting cases, the justices just last month said they also would decide the constitutionality of the Patient Protection and Affordable Care Act — the new federal health care law. No date has been set yet for arguments.
Because of the complexity of all three challenges and their review in the second half of the term, decisions are likely in June, shortly before presidential nominating conventions and just as presidential and congressional election campaigns intensify.
Former Bush Solicitor General Paul Clement of the Washington firm Bancroft has a potential triple play in the works as he is counsel of record in all three high-profile challenges: for Arizona Gov. Jan Brewer in Arizona v. U.S.; for Texas Gov. Rick Perry in the redistricting cases, Perry v. Perez; and for 26 Republican state attorneys general in the health care challenge, Florida v. Dept. of Health & Human Services.
Clement has already argued in two cases this term: Pacific Operators Offshore v. Valladolid, a workers’ compensation case, on Oct. 11, and the water-rights case PPL Montana v. Montana on Dec. 7. Clement is also counsel of record in Christopher v. SmithKline Beecham Corp. , a Fair Labor Standards Act case granted review on Nov. 28. In addition, he’s arguing in Armour v. Indianapolis, an equal protection tax case likely to be argued in February, for a possible total of seven cases argued this term.
“It’s going to be a busy spring, but it looks a lot like an SG’s argument docket,” said Clement, who added that final decisions on who is arguing have not been made in all the cases on his plate. “For a private practitioner, it is an embarrassment of riches.” Asked if Bancroft, a relatively small firm, has the infrastructure to handle his growing docket, said he was confident it can be done. “We’ve more than doubled the number of lawyers since I came to the firm.” The firm web site now lists 12 attorneys on staff.
Justice Elena Kagan will not participate in the Arizona immigration case. Her recusal, likely because of her participation in the litigation when she was solicitor general, opens the possibility of a 4-4 decision, which would leave intact the ruling by the U.S. Court of Appeals for the 9th Circuit upholding the preliminary injunction against the four provisions in the state law.
The U.S. Department of Justice has lawsuits pending that challenge similar anti-immigration statutes in Alabama (whose law is viewed as tougher than Arizona’s), South Carolina and Utah.
In his petition urging high court review, Arizona’s lawyer, Clement, told the justices, “The Ninth Circuit has completely foreclosed Arizona’s effort to address the disproportionate impact of unlawful immigration in a State with a 370-mile border with Mexico.” He described the state law as a cooperative effort with federal immigration law enforcement. The appellate court, he argued, invalidated the law’s four provisions on their face without considering whether the law was capable of any constitutional application and by rejecting the state’s own limiting interpretation of the statute.
Opposing review, Solicitor General Donald Verrilli Jr. countered that the four provisions “do not represent an effort to cooperate with the federal government in enforcing federal immigration law; instead, they are designed to establish Arizona’s own im¬migration policy, ‘attrition through enforcement,’ to supplant what the Governor called in her signing state¬ment the federal government’s ‘misguided policy.’ “
Two of the four provisions enjoined by the lower courts create new state crimes and the 9th Circuit panel unanimously found them pre-empted by federal law. Two other provisions impose requirements on Arizona law enforcement to verify immigration status and provide arrest authority. The panel held by a split vote that those provisions also were pre-empted. Here is what the four provisions do:
• Section 2(B): for any legal stop, detention or arrest, when an officer has reasonable suspicion that the person is an illegal alien a reasonable attempt must be made to verify the person’s immigration status. And, any person who is arrested must have his or her immigration status determined before release.
• Section 3: creates a state crime for willful failure to complete or carry an alien registration document.
• Section 5(C): creates a state crime for an illegal alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor.
• Section 6: gives authority to law enforcement to make a warrantless arrest of anyone when the officer has “probable cause to believe” the person to be arrested has committed any public offense that makes the person removable from the United States.
Arizona’s petition for review drew support from about a dozen conservative legal groups as well as 10 states and some members of Congress.
Reacting to the justices’ grant of review, Jay Alan Sekulow, chief counsel for the American Center for Law and Justice, which filed an amicus brief supporting the petition on behalf of 59 members of Congress, said, “S.B. 1070 reflects a sensible and constitutional method for Arizona to protect its citizens and borders from illegal immigrants. This is a critical case that will have a tremendous impact on the growing number of states seeking to enact laws that protect their borders and citizens. Arizona’s measure is not only appropriate and proper, it mirrors federal immigration law and incorporates federal standards.”
But Elizabeth Wydra, chief counsel to the Constitutional Accountability Center, said in a statement, “We are confident that the Supreme Court will uphold the Ninth Circuit’s decision stopping the unconstitutional provisions of Arizona’s anti-immigrant law from going into effect. Congress’ constitutional power to make a ‘uniform rule of naturalization’ is one of the few places where the Constitution makes absolutely clear that the federal government’s power is exclusive.”
Supreme Court correspondent Tony Mauro contributed to this article.