A statue of the Virgin Mary sits on a table in front of the Supreme Court in… (Mark Wilson / Getty Images )
WASHINGTON — In what is shaping up as Round 2 for the Supreme Court and President Obama, the justices are hearing a highly charged clash over Arizona’s planned crackdown on illegal immigrants and the administration’s effort to block it.
Obama’s lawyers won in lower courts in Phoenix and San Francisco, but the high court is considering Arizona’s appeal during oral arguments. It is a rematch for the two attorneys who argued in last month’s constitutional challenge to Obama’s healthcare law.
This time, the issue is whether the federal government’s traditional control over immigration prevents states such as Arizona from authorizing their police to stop and arrest suspected illegal aliens. Since Arizona adopted its SB 1070 law in 2010, similar get-tough measures have been passed in five other Republican-led states: Alabama, Georgia, South Carolina, Indiana and Utah.
Many of their provisions have been put on hold by judges, awaiting a ruling from the high court.
The election-year legal debate goes to the heart of the dispute between Republicans and Democrats over what to do about the estimated 11 million illegal immigrants living and working in this country. Arizona and the other five states seek a stepped-up effort to arrest and deport aliens who are here illegally. They say the federal system is broken and fault Obama for what they call a “relaxed posture” toward enforcement.
Senate Democrats, eyeing an electoral advantage with Latino voters, served notice Tuesday they will seek legislation to overturn Arizona’s law if the Supreme Court were to revive it this summer.
The court “should find the Arizona law unconstitutional, but if it doesn’t, Congress will be ready,” said Sen. Charles Schumer (D-N.Y.), chairman of the immigration subcommittee. “States should be barred from taking immigration enforcement measures into their own hands and imposing penalties as they see fit.”
The Republicans skipped a hearing convened by Schumer to debate Arizona’s law, but Sen. Chuck Grassley of Iowa, its ranking Republican, came to the defense of Arizona’s lawmakers. They were forced to act because of “this administration’s inaction and amnesty-minded policies,” Grassley said.
The dispute before the Supreme Court is a classic clash of federal power versus states rights. The Constitution gives Congress the power to “establish an uniform rule of naturalization” and says federal law “shall be the supreme law of the land.”
Obama’s lawyers cite these provisions and argue that Arizona must follow the federal lead on immigration. “Arizona’s attempt to set its own policy for enforcement of federal immigration law is not cooperation. It is confrontation,” U.S. Solicitor General Donald Verrilli Jr. said in his brief.
Washington attorney Paul Clement, who served as President George W. Bush’s solicitor general from 2005 to 2008, represents Arizona and Gov. Jan Brewer. He argues that the state is not creating a new immigration policy but instead is seeking to help enforce the federal laws on the books.
Clement also has a valuable precedent on his side. 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.
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.
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 1.”
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 theU.S. Chamber of Commerce had contended that the 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.