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Brewer with Clement (right) (AP/Photo by Charles Dharapak)

Arizona in the dock

Supreme Court | The high court seems willing to give states at least some power to control immigration

WASHINGTON-A posse of state attorneys general were milling around on the steps of the U.S. Supreme Court building-again. Another day at the high court, another blockbuster case.

Wednesday's case on Arizona's immigration law, the last of the Supreme Court's term, was in many ways a parallel of last month's historic healthcare case. Arizona v. United States pitted the same two lawyers against each other: Solicitor General Donald Verrilli Jr. and Paul Clement, who was solicitor general during the Bush administration. Dozens of state attorneys general filed briefs in favor and against Arizona's laws; religious groups took sides, holding vigils; and chanting crowds packed in front of the steps of the court-all just like in the healthcare case.

The justices seemed to view this as a similarly historic case: It was billed for an hour of argument, but they granted the lawyers a rare extra half hour, what Clement called "bonus time." (Download a PDF of the transcript.) Missing from this case was Justice Elena Kagan, who, because of her position as the former solicitor general in the Obama administration, recused herself. If the court's vote ends up tied 4-4, then the 9th U.S. Circuit Court of Appeals' decision to overturn most of the law would be in force.

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The court will decide the case sometime in the next two months, and the decision will have a wide impact because over the last two years a number of states-Utah, Alabama, Indiana, Georgia, and South Carolina-have passed similar immigration laws and have faced similar legal challenges. Some federal courts are waiting on the Supreme Court's ruling to decide these other states' cases. Plus, other state legislatures are currently working on passing Arizona-type laws.

The justices will not be deciding whether the Arizona law, known as S.B. 1070, is a good law. The federal government's lawsuit did not ask the court to consider, for example, whether the law's provision allowing law enforcement officers to check the immigration papers of those they reasonably suspect are in the country illegally amounts to racial profiling.

Chief Justice John Roberts made this clear in his first question to Solicitor General Verrilli: "No part of your argument has to do with racial or ethnic profiling?"

"We are not making any allegations on racial or ethnic profiling," Verrilli affirmed.

The court is dealing with the more abstract issue of whether federal law preempts certain provisions in the Arizona law. The law's challengers have a high bar to clear because the court has generally placed the burden on the federal government to show that its laws take precedence over state laws. Specifically at issue were four elements of the Arizona law that the federal government said conflicted with its immigration policy: state law enforcement checking someone's immigration status, law enforcement making warrantless arrests, the criminalization of illegal immigrants working or attempting to work, and the criminalization of immigrants being in the country illegally. None of these elements have been in force in Arizona because courts have blocked them.

From the tone of the arguments Wednesday, it seemed most of the justices were willing to give Arizona at least limited authority to address immigration. Just last year, the court in U.S. Chamber of Commerce v. Whiting approved Arizona's law that requires employers to check the immigration status of their employees.

On Wednesday, Justice Anthony Kennedy, the critical swing vote on the court, asked Verrilli, "Two hypotheticals. … [W]e simply don't have money or resources to enforce federal immigration law the way we wish. … Also hypothetical is that the state of Arizona has an emergency of social disruption, economic disruption, residents leaving the state because of [a] flood of immigrants. Let's just assume those two things. Does that give Arizona any powers or authority … to correct this problem?"

"They can engage in cooperative efforts with the federal government in order to address these problems," said Verrilli, meaning the state could not make its own immigration policy.

Arizona argued that it was simply helping the federal government enforce its immigration policy, and it would be backward to punish the state if it enforces federal immigration policy more zealously than the federal government.

The conservative justices-as well as Kennedy-seemed to latch onto this logic. Roberts made the point that all the state was doing was reporting illegal immigrants to the federal government; it was up to the federal government to take any action in prosecuting or deporting the immigrants.

"If Arizona calls, answer the phone and don't write anything down," Roberts suggested.

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