The U.S. Supreme Court could decide as early as Monday whether Arizona will get a chance to begin enforcing its year-old law aimed at illegal immigrants.
On Friday, the justices met behind closed doors to consider a petition by Gov. Jan Brewer to void an injunction issued last year, just days before SB 1070 was set to take effect, prohibiting the state from implementing key provisions. That included one crucial section which directed police to determine the immigration status of those they have stopped if there is reason to believe someone is in this country illegally.
The 9th Circuit Court of Appeals affirmed the injunction, leaving Brewer nowhere to go but the nation's high court.
An order Monday in Brewer's favor does not dissolve the injunction. All it means is that at least four of the nine justices want to consider the matter.
But an order denying the governor's request means the injunction remains in place while the legality of the law is decided through a full-blown trial and whatever appeals occur. And that process could take years.
At the core of the complex legal dispute is a simple question: Does federal law preempt Arizona from adopting its own measures designed to help apprehend illegal immigrants?
U.S. District Court Judge Susan Bolton, who issued the injunction, said it does. And she also said the law places an undue burden on those who are in the country legally.
Citing that provision about police seeking immigration ID, she pointed out that there are some people in this country who are not citizens but are not required to have visas. Bolton said they could be subject to arrest "in addition to the burden of the possibility of inquisitorial practices and police surveillance."
"The federal government has long rejected a system by which aliens' papers are routinely demanded and checked," Bolton wrote.
The judge also said Arizona was treading where it cannot go.
Another section of SB 1070 makes it illegal for anyone who is a citizen of another country to not have federally required documents. That section, in essence, would allow the state to arrest and hold illegal immigrants for violating Arizona law.
Bolton called that "an impermissible attempt by Arizona to regulate alien registration."
She also said the state cannot make it a crime for illegal immigrants to seek work in this state.
The judge said Congress never intended to criminalize such conduct but instead intended to focus its penalties on companies that knowingly hire undocumented workers. Bolton said that means the Arizona law "conflicts with a comprehensive federal (immigration) scheme and is preempted."
But Paul Clement, a former U.S. solicitor general hired by Brewer to fight the injunction, told the justices in his legal briefs that Bolton was operating under the erroneous presumption that states can get involved in immigration enforcement only when the federal government gives specific permission. He said that's not the way federalism works.
"The baseline assumptions of our federal system are that states have inherent, plenary police power and that cooperative law enforcement is the norm," he wrote. And Clement said that, in essence, all Arizona is doing with SB 1070 is helping to enforce federal immigration laws.
But the Department of Justice, which sued the state and got Bolton to issue the injunction, is urging the justices to stay out of the legal fray, saying there is no reason for them to intercede, at least not at this point.
"That several states have recently adopted new laws in this important area is not a sufficient reason for this court to grant review," the agency said in its response.
In issuing the injunction, Bolton said she had to weigh the "balance of hardships." She concluded that federal interests would be harmed more by letting the law take effect than any damages to the state by putting it on hold. But Clement, in his brief, said that ignores the fact that there are about 400,000 illegal immigrants in Arizona.
"Arizona spends several hundred million dollars each year incarcerating criminal aliens and providing education and health care to aliens who entered and reside in this country in violation of federal law," Clement wrote. He said the injunction leaves Arizona residents suffering from the problem without any way to deal with it.
"Such a conclusion is irreconcilable with the basic tenets of federalism," Clement said. "Border states should not be placed in such an untenable position."