Yesterday the United States Supreme Court heard oral arguments in State of Arizona v. United States, the case where the United States government has challenged the authority of a state to enact its own immigration enforcement laws instead of following federal regulations. When the Court delivers its written opinion in June, we can expect that the ruling will impact more than just Arizona as five other states have enacted similar enforcement-only laws that promote, explicitly or implicitly, the policy of “attrition through enforcement”. But the ruling could also clear the way for states to enact creative and forward-thinking laws such as Utah’s guest worker law given that the federal government is not stepping up to fix our nation’s broken immigration laws and policies.
If yesterday’s oral arguments are any indication of how the Court is likely to rule, it appears that states may have the Court’s blessing to venture deeply into immigration policy, which has traditionally been reserved for, and in the exclusive purview of, the federal government. At issue yesterday was Arizona’s aggressive and controversial 2010 immigration enforcement law known as S.B. 1070, which makes “enforcement by attrition” (or in another words, “we’ll make your life such a living hell that you won’t want to live in our state”) the state’s policy with regard to undocumented immigrants. The Court reviewed four key provisions of the Arizona law, including:
- Section 2(B): commonly referred to as the “show me your papers” section, which requires all Arizona law enforcement officers to verify the immigration status of any person stopped, arrested, or detained if the officer has a “reasonable suspicion” that the person is in the country unlawfully
- Section 3: the section that makes it a crime under Arizona law for an immigrant to fail to carry their “alien registration document,” which is not a crime under federal law
- Section 5(C): the section of the law that criminalizes unauthorized work, which also is not a federal crime
- Section 6: the section that allows warrantless arrests if an officer has “probable cause” to believe that a person has committed a crime that makes that person removable from the country
By all accounts, the oral arguments did not go well for the United States as most of the justices seemed skeptical of the federal government’s arguments against Sections 2(B) and 6 and appeared to be prepared to accept that Arizona police would act in measured ways as they arrest and detain individuals they think might be in the United States illegally. The Court spent much less time, if any, on the other two sections, which could be an indication that the Court is not likely to agree with Arizona on either of those provisions. Experts say that from the argument it appears that Justices Roberts, Scalia, and Thomas support Arizona’s position and Justices Breyer, Ginsburg, and Sotomayor support the United States’ position, while Justices Kennedy and Alito appear to be poised to cast the potentially key swing votes on the matter. Because Justice Kagan has recused herself from deciding the case due to her prior involvement in the case as the Solicitor General of the United States, only eight justices will decide the fate of the Arizona law. If the vote is 4-4, the Ninth Circuit Court of Appeals’ decision striking down these four provisions of S.B. 1070 will remain in force. Full reporting and analysis on the argument are available from Lyle Denniston on SCOTUS Blog, Greg Stohr of Bloomberg News, the New York Times, the Los Angeles Times, the Washington Post, the Associated Press (via the Seattle Times), Reuters, McClatchy, CNN, MSNBC, Fox News, Huffington Post, Politico, DC Dicta, and the Wall Street Journal (subscription required).
In March 2011, the state of Utah enacted a package of immigration laws, including H.B. 497 (an immigration enforcement law patterned after, but significantly different than, Arizona’s S.B. 1070), H.B. 116 (a law creating the Utah Guest Worker program to enable Utah to issue work permits to its undocumented residents and create a temporary worker program), and H.B. 466 (a law that created the Utah Commission on Immigration and Migration). H.B. 497 has not yet gone into effect because a federal district judge granted a temporary injunction pending a ruling by the Supreme Court in the Arizona case. H.B. 116 on the other hand, which will not go into effect until July 1, 2013, has not yet been challenged in court.
Utah has received national attention and praise for passing H.B. 116, which marked an attempt by a state to come up with an alternative to the “enforcement by attrition” policy espoused by laws such as Arizona’s S.B. 1070. Utah enacted what would be a truly innovative solution for a problem we all know has been created by the federal government’s complete refusal to fix our broken immigration system. In passing H.B. 116, Utah recognized the importance of striking the right balance on this issue so that while immigration enforcement would undoubtedly be a key policy objective of the law, it would not come at the expense of jeopardizing the state’s economy or its community values. In short, Utah hoped to avoid the well-documented unintended consequences that other states such as Georgia, Alabama, and Arizona have been suffering as a direct result of their “enforcement by attrition” policies.
While the Supreme Court’s decision will undoubtedly impact the outcome of the legal challenges to Utah’s H.B. 497 and similar laws in other states, it will be much more interesting to see what impact, if any, the Supreme Court’s decision will have on state laws such as H.B. 116. Will the Supreme Court recognize that Utah and other states also have authority, in the face of federal inaction, to pass innovative immigration laws such as H.B. 116 or will it follow its longstanding precedent that has recognized that such immigration policy is reserved exclusively for the federal government? While the latter seems to be the more prudent approach for the Supreme Court to take, if the federal government is going to continue abdicating its responsibility to fix our nation’s broken immigration system, then states such as Utah ought to be empowered to enact their own innovative solutions such as H.B. 116.