Last month’s debate over the Affordable Care Act served as something of a preview of the Supreme Court’s oral arguments in the Arizona SB 1070 case — or the the immigration law case, which begin today at 10 a.m.It’s all about the power of the federal government. The key principle is federalism: the relationship between the U.S. federal government and the states. What powers do the federal government have vs. state governments? In this case specifically, does the federal government’s power to regulate immigration prevent Arizona from enforcing its own cooperative law enforcement?
And guess who’s here again? Paul Clement, the star lawyer of the Obamacare case. He’s arguing for the side of Arizona and Gov. Jan Brewer. On the other side (again): Donald Verrilli, the U.S. solicitor general most famous during the Obamacare arguments for his stumbling mess in the opening arguments.
Gabriel J. Chin, a law professor at the University of Arizona who specialises in immigration law, said in early April that a strong oral argument lawyer like Clement could have even more of an effect in this case. The health care case, by contrast, was so thoroughly covered in the press and in the briefs that it left little room for the justices to be surprised.
“The question is, which principle applies to particular aspects of Arizona’s law?” Chin said. “That, I think, a good argument, good illustrations, good examples really could change the court’s view. They may not be decided — at least some of them.”
Here’s what you need to know about the case:
• There is overwhelming public support for the law. According to a recent Fox News poll, 65 per cent of those surveyed supported the law. That compared to just 31 per cent that opposed. The more than 2-to-1 margin is the largest it has ever been.
Photo: Fox News
• This court order is currently halting some of the key controversial aspects of the law, including a point requiring law enforcement officials to check immigration status when stopping a person for routine traffic violations.
• The government’s argument will be that Arizona’s efforts are an overreach, as signaled by this sentence in Verrilli’s brief:
“For each state, and each locality, to set its own immigration policy in that fashion would wholly subvert Congress’ goal: a single, national approach.”
• Arizona’s argument: The federal government is doing a really, really bad job at that national approach. Here’s Clement in his brief:
The public safety and economic strains that this places on Arizona and its residents have created an emergency situation, which demanded a response. The President fairly describes our Nation’s system
of immigration regulation and enforcement as “broken.”
• Chin said everyone accepts basic principle that only the federal government can directly regulate immigration. And everyone accepts the basic principle that states can do things within their police powers for their own reasons even if they indirectly affect immigration.
“So the question is, which principle applies to particular aspects of Arizona’s law?” Chin said.
• There are four provisions at issue. Chin expects at least three to be struck down as unconstitutional. Let’s break them down:
The first provision is the law that makes it Arizona state crime to not carry federal immigration documents. Chin said the federal government “is going to hold that unconstitutional.”
The second is part that makes it unlawful to work in Arizona undocumented. This is also likely to be struck down.
Next, state officers making arrests for civil immigration violations is likely to be struck down as well, on statutory grounds. A federal statute says states have to cooperate with the attorney general on detention and removal of undocumented non-citizens. State governments do not have authority to act when the federal government has not asked them to, Chin said.
Now, the big one: Checking the status of every person that has been stopped for traffic violations when there is reasonable suspicion that they could be undocumented. This is actually the part that has the best chance of being held constitutional, Chin said.
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