Justices Weigh Arizona Immigration Law

By Mark Walsh — April 25, 2012 2 min read
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The U.S. Supreme Court on Wednesday appeared inclined to back the state of Arizona on at least one provision of its controversial immigration law.

“Arizona is not trying to kick out anybody that the federal government has not already said do not belong here,” said Justice Antonin Scalia. It was one of the justice’s nicer comments on illegal immigration during the arguments in Arizona v. United States (Case No. 11-182).

The case is being watched closely by educators in the state and elsewhere, such as in Alabama, whose similar anti-illegal-immigration law goes further in several respects, including a requirement that schools check students’ citizenship status.

Other justices were more measured in their comments, but there appeared to be little support among the eight participating justices (Justice Elena Kagan is recused) for blocking a provision of Arizona’s law that requires police to determine the immigration status of those they stop or arrest if they have a reasonable suspicion of that the person is in the United States illegally.

U.S. Solicitor General Donald B. Verrilli Jr. said Arizona’s statute amounts to an effort by the state to enforce federal law in the immigration arena.

“Under the Constitution, it’s the president and the executive branch that are responsible for the enforcement of federal law,” Verrilli said.

Chief Justice John G. Roberts Jr. told Verrilli at he didn’t see Arizona’s provision as a state effort to enforce federal immigration law.

“It is an effort to let you know about violations of federal law,” Roberts said. “Whether or not to enforce them is still entirely up to you.”

Even Justice Sonia Sotomayor, a member of the court’s liberal bloc, told Verrilli at one point that one of his key arguments was “not selling very well” with the court.

The arguments focused intensely on the provisions of Arizona’s law. There were limited hypothethicals, and the justices did not get into ideas such as the student citizenship checks that are part of Alabama’s law. (Among those in attendance Wednesday was Alabama Attorney General Luther Strange, who issued a statement saying he was “cautiously optimistic that the Supreme Court will recognize that the states can play an important role in assisting the federal government in fulfilling its responsibility to enforce the immigration laws of this country.”)

As I noted in this post on Tuesday, there are concerns that the Arizona statute itself would have harmful effects on undocumented students.

The justices on Wednesday appeared more skeptical of provisions of SB 1070 that would make it a violation of state law for aliens not to carry identification documents and would make it a crime for illegal immigrants to seek work.

Roberts told Paul D. Clement, the lawyer defending Arizona’s law, that the work measure seemed to impose “significantly greater sanctions” than those included in federal law for similar violations.

Earlier in the argument, Clement said that “the state of Arizona bears a disproportionate share of the costs of illegal immigration.” As the state’s brief makes clear, those include the costs of educating undocumented immigrants.

The case was the last of the Supreme Court’s 2011-12 term to be argued. A decision is expected by late June.

A version of this news article first appeared in The School Law Blog.