PHOENIX -- Arizona will get its last legal shot this spring to finally enforce all of its 2-year-old immigration law.
On Friday the U.S. Supreme Court set April 25 to hear arguments by attorneys for the state that everything in SB 1070 is both legal and within the state's power to enact. That contention already has been rebuffed twice, once by U.S. District Court Judge Susan Bolton who blocked the state from implementing key provisions of the 2010 law and then by the 9th U.S. Circuit Court of Appeals.
It likely will be months before the justices actually rule. But whatever they decide will have nationwide implications, as several states already have copied and enacted similar laws.
Hanging in the balance are several sections of the statute, including:
- Requiring a police officer to make a reasonable attempt to check the immigration status of those they have stopped;
- Forbidding police from releasing anyone they have arrested until that person's immigration status is determined;
- Making it a violation of Arizona law for anyone not a citizen to fail to carry federally issued documentation;
- Allowing police to make warrantless arrests if there is a belief the person has committed an offense that allows them to be removed from the United States;
- Creating a new state crime of trying to secure work while not a legal resident.
In blocking those provisions, the lower court judges agreed with arguments by the Obama administration, which sued to overturn the law, that the state was illegally intruding into areas reserved for the federal government. Paul Clement, a former U.S. solicitor general hired by Gov. Jan Brewer to argue the case, now has the job of convincing at least five justices that is not true.
He contends that all the state is doing is working in cooperation with federal officials to enforce federal law. And Clement said the earlier rulings are based on what he said is an erroneous presumption that states can get involved in immigration enforcement efforts only when the federal government gives specific permission.
"States, unlike federal agencies, are not creatures of the federal Congress and do not depend on federal statutes for authorization,'' he wrote.
Gubernatorial press aide Matthew Benson said his boss is optimistic that the majority of the court will see things that way.
"This is an opportunity for the state to finally get before the highest court in the land and make its argument for why the state of Arizona has a right and an obligation to enforce immigration law, together with the federal government, and defend our citizens,'' he said.
That citizen defense argument is also part of what Clement is hoping sways the high court.
In prior filings, he told the justices Arizona is being harmed by the fact there are about 400,000 illegal immigrants in Arizona, with 230,000 of them holding jobs in the state, amounting to 7.4 percent of the total workforce. And more than 17 percent of those locked up in state prisons, at state expense, are in this country illegally.
"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,'' he wrote. He said it was against that backdrop that lawmakers approved and Brewer signed SB 1070.
"The injunction against SB 1070 leaves Arizona and its people to suffer from a serious problem without any realistic legal tools for addressing it," Clement wrote.
Only eight of the justices will be hearing the arguments.
Elena Kagan has recused herself because of her former role as solicitor general in the Obama administration. That means a 4-4 tie would leave intact both Bolton's ruling and the 9th Circuit decision upholding it.
Bolton's ruling did not affect several other sections of SB 1070 which did take effect. But other challenges remain.
For example, one provision makes it a crime to stop a motor vehicle to pick up day laborers, and for day laborers to get into a vehicle if it impedes the normal flow of traffic. When Bolton issued her ruling in 2010, the 9th Circuit had upheld a similar law from California.
Since that time, however, the appellate court reversed its stance and declared that ordinance illegal. That has led to efforts by others who are challenging the law to get Bolton to take a second look.