It was a foregone conclusion that the nation’s highest court would be the final arbiter of just how far states can go in enforcing immigration laws. On Monday, the Supreme Court made it official in agreeing to hear Arizona’s challenge to an Appeals Court decision that halted portions of the state’s controversial immigration law.
By simply passing the law intended to crack down on illegal immigration, Arizona put a chip on its shoulder daring the federal government to knock it off. The pre-scripted showdown will now continue. States such as Alabama and South Carolina, which have passed their own “copycat” laws modeled on Arizona’s statute, will be watching to see how far they can push it. Meanwhile, the impending dialogue on immigration will likely become a campaign rallying cry for Hispanics who want eligible undocumented workers to have the chance to earn green cards and for Republicans who argue that the United States has fallen down on the job in enforcing immigration laws.
Arizona’s Republican Gov. Jan Brewer argues that the state had no choice but to take immigration enforcement into its own hands because Congress has failed to enact any changes that would stop the flow of illegal immigrants into the state. In April, a federal Appeals Court upheld an injunction against the portions of Arizona’s law that require police officers to check immigration status during traffic stops and routine arrests. The United States sued the state after the measure was enacted, saying that immigration law falls squarely within federal purview.
Brewer is right about the federal government’s failure in one sense. Congress has failed to pass a comprehensive immigration law that would alter how immigration inflows and the current undocumented population are handled. As a result, the immigration problems that have confronted the country for the last 25 years—the inability to deal with illegal immigrants already in the country and the extreme difficulty of migrating here legally—remain unsolved.
Brewer is wrong in another sense. Since an effort to pass a comprehensive immigration bill failed in the Senate in 2007, lawmakers and the administration have consistently funneled more money to the border and cracked down on illegal immigration at both the worksite and in local law-enforcement offices. It’s not a stretch to argue that there has been more immigration enforcement now than ever before.
The high court case will spawn a lot of talk about the government’s ability to handle immigration, but the decision won’t be a referendum on government activity in that area. Instead, it will turn on the tricky legal question of whether the states have any role in enforcing immigration laws. Arizona said in its petition to the high court that it was “acutely aware of the need to respect federal authority over immigration-related matters” when it passed the law, attempting to parallel federal law in many cases. But the federal government argues in its reply that Arizona’s law goes too far because it creates “new state crimes” in immigration and it imposes new requirements on police officers to verify immigration status. It also gives them new arrest authority, which is disallowed by federal law.
The justices could find themselves deadlocked at 4-4 with Justice Elena Kagan out of the decision mix because she argued the government’s position in the case as solicitor general in the Obama administration. In case of a tie, the lower court’s injunction against the immigration law would stand. However, the high court ruled 5-3 earlier this year to allow Arizona to move forward with an earlier immigration law that requires employers to verify the legal status of new hires. That case turned on a different clause in the federal law involving business licenses, but the sentiment of the justices in giving states more leeway could exhibit itself in this case as well.