A U.S. Border Patrol unit monitors a stretch of the U.S.-Mexico border in… (Guillermo Arias, Associated…)
WASHINGTON — The Supreme Court and the Obama administration are set for another politically charged clash Wednesday as the justices take up Arizona's tough crackdown on illegal immigrants.
It will be a rematch of the attorneys who argued the healthcare case a month ago, and another chapter in the partisan philosophical struggle over states' rights and the role of the federal government.
And once again, President Obama's lawyers are likely to face skeptical questions from the high court. Last year, the court's five more-conservative justices rebuffed the administration and upheld an earlier Arizona immigration law that targeted employers who hired illegal workers.
To prevail this year, the administration must convince at least one of the five to switch sides and rule that the state is going too far and interfering with the federal government's control over immigration policy.
The election-year legal battle goes to the heart of the dispute between Republicans and Democrats over what to do about the estimated 11 million illegal immigrants in the country.
Arizona and five other Republican-led states seek a stepped-up effort to arrest and deport illegal immigrants. They say the federal system is broken and fault Obama for what they consider a "relaxed" enforcement policy.
If cleared by the courts, Arizona would tell its police to check the immigration status of people they lawfully stop and suspect of being in the country illegally. If they were unable to show a driver's license or other "proof of legal presence," they would be arrested and held for federal immigration agents. Arizona also would make it a crime to lack immigration papers or for illegal immigrants to seek work.
For its part, Obama's administration favors targeted enforcement, not mass arrests of illegal immigrants.
The administration has gone after drug traffickers, smugglers, violent felons, security risks and repeat border crossers. Last year, nearly 400,000 people were deported, a record high. At the same time, the administration says mere "unlawful presence" in this country is not a federal crime, and it opposes state efforts to round up and arrest more illegal immigrants.
Alabama, Georgia, South Carolina, Indiana and Utah also have adopted tough immigration enforcement laws. But judges have blocked many of their provisions, awaiting a ruling from the high court.
Washington lawyer Paul Clement, President George W. Bush's solicitor general, will argue for Arizona and Republican Gov. Jan Brewer on Wednesday; Obama's solicitor general, Donald B. Verrilli Jr., will argue the Democratic administration's case.
Clement is arguing for a stronger state role in enforcing the immigration laws, traditionally a federal function. Verrilli is contending that Arizona's "maximum enforcement" policy for immigration goes too far and conflicts with federal policy.
The court's decision, expected by the end of June, could ignite the immigration issue in the presidential campaign.
Republican presidential candidate Mitt Romney has said he supports laws in Arizona and elsewhere that seek to drive away illegal immigrants. "The answer is self-deportation," he said in one debate.
Obama, on the other hand, has expressed concern about the effect on millions of normally law-abiding Latinos, including those with U.S. citizenship.
The Arizona law "potentially would allow someone to be stopped and picked up and asked where their citizenship papers are based on an assumption," Obama said in a recent interview. The president also supports the Dream Act, a proposal that would offer a path to citizenship for young illegal immigrants who earn diplomas or serve in the military.
Two years ago, Obama's lawyers sued in federal court in Phoenix to block Arizona's law. They argued that the federal government's exclusive power over immigration preempts the state's law. U.S. District Judge Susan Bolton agreed, as did the U.S. 9th Circuit Court of Appeals in San Francisco. Its 2-1 decision put on hold four key parts of Arizona's law, including the stop-and-arrest provision.
Romney has pledged that if elected president, he would "drop these lawsuits on day one."
The Supreme Court, however, may revive most or all of Arizona's law by the summer.
Last year, the court, in a 5-3 decision, upheld the Arizona law that would take away the business licenses of employers who knowingly hire illegal workers. The Obama administration, civil rights groups and the U.S. Chamber of Commerce had contended this state enforcement measure clashed with federal immigration law.
Chief Justice John G. Roberts Jr. disagreed and sounded a states' rights theme. He said the law sets a "high threshold" for striking down a state law as "preempted for conflicting with the purposes of a federal act." Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. agreed.
Three liberal justices supported the administration's view. Justice Elena Kagan sat out last year's case and also has withdrawn from this year's, apparently because of her role as solicitor general during Obama's first year in office. Her absence could lead to a 4-4 split, which would affirm the 9th Circuit's decision.
If the high court reverses the 9th Circuit's decision, Latino advocacy groups say they will go back to court in Phoenix and seek to block the law on civil rights grounds.