Arizona Gov. Jan Brewer appealed to the Supreme Court to revive the state’s disputed immigration policing law, seeking a ruling that could free states to take aggressive enforcement action against illegal immigrants.
“Arizona bears the brunt of the problems caused by illegal immigration [and] is the gateway to nearly half of the nation’s illegal border crossings,” said former Solicitor General Paul Clement on behalf of the state.
Clement, who served during the George W. Bush administration, urged the justices Wednesday to rebuke the Obama administration for its “extraordinary step” of intervening in court to block the Arizona law, known as SB 1070, from taking effect.
If the justices agree to take up the Arizona case, they would hear arguments in the winter and probably hand down a ruling in late spring as the presidential race gets underway.
Last year, Arizona took center stage in the immigration debate when its lawmakers directed police to check the immigration status of people they lawfully stopped and suspected of being in the country illegally. The state said its stepped-up enforcement was intended to “discourage and deter” illegal immigrants from living or working in Arizona.
But the Obama administration went to court in Phoenix along with immigrant rights advocates, arguing that the federal government has exclusive control over immigration enforcement. The administration said its policy was to arrest and deport criminals, gang members and drug dealers who were illegal immigrants. By implication, officials indicated they did not seek to round up hundreds of thousands of illegal immigrants who were working or living in this country.
The administration won rulings from a federal judge in Phoenix and the U.S. 9th Circuit Court of Appeals in San Francisco, putting the Arizona policing measure on hold.
In appealing those decisions, Clement said the states had a basic “police power” that allowed them to enforce the law within their borders. Moreover, he said, illegal immigration has a “disproportionate impact” on states such as Arizona, which justifies extra enforcement measures.
Following Arizona’s lead, Georgia, Alabama and Utah have adopted similar enforcement laws. In addition, Clement cited measures in Indiana, Missouri, Oklahoma, Rhode Island, South Carolina and Tennessee that authorize police to check the immigration status of those they arrest.
But most of those measures face legal challenges, and several have been blocked from going into effect.
At issue in all of these cases is whether states may enforce the immigration laws more aggressively than the federal government.
Arizona’s legal position got a boost in May when the Supreme Court, in a 5-3 decision, upheld a state employment law that would take away the business licenses of employers who knowingly hired illegal workers. It was challenged by companies and civil rights advocates who argued that the state penalties conflicted with federal law. But Chief Justice John G. Roberts Jr. said the court was wary of striking down a state law unless Congress made clear states have no enforcement role.
In his appeal on the SB 1070 case, Clement argued that Congress wanted the state to play a “cooperative” role in enforcing the immigration laws.
Omar Jadwat, an immigrant rights lawyer for the American Civil Liberties Union, said he doubted the state would prevail in the high court.
“The governor had put herself in a political position where she had to file this appeal. But she has lost in the district court and in the court of appeals, and I don’t think dragging it out will make for a different result,” he said. “There’s really no need for the Supreme Court to get involved.”