The U.S. Supreme Court did not have to commit itself to deciding the constitutionality of Arizona’s anti-illegal immigration statute SB 1070. It could have allowed the lower federal courts, which have temporarily enjoined enforcement of portions of the law at the request of the Obama administration, to proceed with a trial on the constitutional merits of the statute. Or it could have waited until lower courts had an opportunity to rule on challenges to similar statutes in Alabama, South Carolina, Oklahoma, and Georgia.
The Obama administration urged the Supreme Court to hold off hearing and deciding Arizona’s defense of its law, even as the administration proceeds with challenges against similar laws of other states. But the Supreme Court refused the request of the Obama administration and granted Arizona’s petition to resolve the on-going dispute over state and local enforcement of federal immigration laws, and to do so promptly, in the midst of a presidential election campaign.
For the first hundred years of the republic we had no numerical limit on immigration. If Congress wanted to return to that policy, declare the borders open and welcome all comers without limit, we could do that. Instead, Congress has chosen the alternative of a numerical limit on immigration, which allows about a million legal immigrants to enter every year with a clear path to full citizenship, the most generous legal immigration policy of any country in the world.
To enforce that limitation Congress authorized deportation of aliens unlawfully present, and criminal penalties for aliens who enter illegally, or who fail to register with the government, or who fail to have in their personal possession documentation of their registration. Criminal penalties have also been enacted by Congress for the knowing employment, transporting, or harboring of illegal aliens.
Arizona wouldn’t need SB 1070 if the Obama administration were committed to enforcing U.S. immigration law. Unable to get the amnesty it advocates for illegal aliens through Congress, the administration has announced a policy of “prosecutorial discretion” under which the only illegal aliens targeted for removal are those convicted of crimes or who constitute a national security threat.
Arizona has over 350 miles of sparsely populated international border, and has become the main entryway for illegal border crossers since effective border fencing was installed in the adjoining San Diego and El Paso sectors so television cameras there can no longer record embarrassing scenes of mass illegal entries. Arizona can’t wait while the Obama administration pursues its indefensible immigration policy of recognizing the numerical limit on immigrants, but not enforcing it.
In enacting SB 1070, Arizona has undertaken to assist the federal government in enforcing its own immigration laws, as expressly provided by Congress. Federal law specifically authorizes any officer of a state or locality to cooperate with the federal government “in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” Federal law requires that the federal government respond to any inquiry by a state or local government agency “seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose specified by law.”
As one U.S. appeals court observed in 1999, “This collection of statutory provisions evinces a clear invitation from Congress for state and local agencies to participate in the process of enforcing federal immigration laws.”
SB 1070 is Arizona’s attempt to accept that invitation by requiring its officers to verify the immigration status through the federal government of any person lawfully stopped who is reasonably suspected of being an illegal alien. SB 1070 makes illegal under Arizona law what is also illegal under federal law, the failure of an alien to carry immigration documents. Similarly, SB 1070 makes illegal under Arizona law the solicitation for work, transporting, or harboring of a known illegal alien, which are also illegal under federal law.
Because SB 1070 is consistent with and not in conflict with federal immigration law, Arizona asserts that SB 1070 is not preempted by federal law, and must be upheld as constitutional.
The Supreme Court this year has already upheld the constitutionality of Arizona’s statute revoking the business license of any employer who knowingly hires illegal aliens, and has vacated the decision of Philadelphia’s U.S. Court of Appeals for the Third Circuit which had enjoined enforcement of the anti-illegal alien ordinances of Hazleton, Pennsylvania.
Oral argument before the Supreme Court on SB 1070 should occur by April, with a decision expected by June. A split decision in the middle of a presidential election campaign will underscore the importance of the Supreme Court and which President will appoint the next justice to it. With Justice Kagan recusing herself, I predict a 5 to 3 majority upholding SB 1070.
Jan Ting is a Professor of Law at Temple University’s Beasley School of Law and a former Assistant Commissioner for Refugees, Asylum and Parole, Immigration and Naturalization Service, U.S. Department of Justice. Jan can be reached at firstname.lastname@example.org.