When Paul Clement walks into the U.S. Supreme Court on Wednesday he’s going to try to convince at least five justices that Arizona has an inherent right to enforce federal immigration laws.
He needs them to believe that to get them to overturn lower court decisions which have so far concluded that key provisions of SB 1070, the state’s 2010 comprehensive measure aimed at illegal immigrants, are preempted by federal law.
But three law professors asked about the issue say Clement could have an uphill fight.
Paul Bender from Arizona State University College of Law said that, everything else being equal, the conservative justices would tend to side with the state in any legal battle. And the liberal branch of the court is short one of its players, with Elena Kagan having recused herself since she was federal solicitor general in the Obama administration which is suing the state.
But this isn’t a normal case.
“This is not a question of states’ rights versus individual rights,” said Gabriel “Jack” Chin of the University of California at Davis.
“This is a conflict between states’ rights and traditional federal authority,” he said. “There, it’s not clear the traditional conservatives are interested in undermining federal authority in foreign policy and national security.”
And that’s precisely what Solicitor General Donald Verrilli Jr. has argued, with the Obama administration even presenting arguments from foreign governments on how Arizona’s law interferes with their relations with the United States.
That also differentiates this case markedly from the legal arguments over the federal Affordable Care Act, one that, curiously enough, pitted the same two attorneys arguing this case against each other.
SB 1070 is designed to give police more power to detain and arrest illegal immigrants. But a federal judge blocked the state from implementing several sections, a decision upheld by the 9th U.S. Circuit Court of Appeals.
Robert Smith of Suffolk University Law School said it’s important to remember that this case is not about whether the law results in discrimination. That issue is not before the court.
“The issue is preemption,” he said.
The state is arguing that nothing in SB 1070 conflicts with federal laws. In fact, the claim is that the state’s just helping the federal government to enforce its laws.
Smith said Congress did anticipate state-federal cooperation. But he said federal law spells out that is supposed to be in the context of an actual agreement between the federal government and state or local agencies, known as 287(g) agreements.
“When you reach those cooperative agreements, you agree that the attorney general and the Department of Justice are monitoring and supervising what you do,” he said. “Here, Arizona is seeking a much more autonomous role.”
Chin said it’s even more basic than that.
“One of the ways you can tell when you’re not cooperating is when the attorney general sues you to get you to stop doing what you’re doing,” he said.
Bender said there’s a good reason for that federal oversight.
“Otherwise, some foreign dignitary comes over here, who knows what some crazy sheriff in Oklahoma might do,” he said.
“They might say, ‘Where’s your papers?’ and they don’t happen to have them, and get detained for a few hours until somebody gets them out,” Bender said. “That can be a foreign policy disaster.”
Clement also is arguing that Arizona has the inherent power to help enforce federal law. But Chin said that ignores that federal officials have broad discretion in how to enforce its laws — and that Arizona might have a different and conflicting idea.
“You may be redoing your kitchen but you probably want to do it your way,” he said. “You probably wouldn’t be happy if I was there in your home with a paint brush and a hammer.”
Bender said the argument holds no water.
“Suppose the state starting charging people with cheating on their federal income tax,” he said, saying it was just helping the federal government enforce its laws.
“That’s absurd,” Bender said. “Nobody would think they could do that. And the reason is the IRS has to make the decision about how to enforce the laws.”
Smith said one of Verrilli’s best weapons in arguing that Arizona is enacting its own immigration scheme is going to be the Arizona law itself.
Its statement of purpose says SB 1070 is designed “to make attrition through enforcement the public policy of all state and local governments in Arizona.” It also says the provisions “are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.”
In essence, Smith said, that is a statement that Arizona disagrees with the federal approach and federal policies, pointing up the direct conflict.
Still, the law professors say Clement does have some arguments.
One, said Chin, would be asking the court to overrule the concept that immigration is an exclusive federal power.
“A lot of people ... scholars, activists, on the conservative side, say that is how the case should be resolved, (that) states have some independent power to regulate non-citizens who come through their territory,” he said. “It’s not out of the question.”
But Chin, who used to teach at the University of Arizona, called it a “100 to one shot.”
Along the same lines, Smith said Clement could try to distinguish between regulating immigration and regulating immigrants.
“States can’t set the ground rules for immigration,” he said. “The states can’t set policy.”
But in arguing they’re just regulating immigrants — especially those who are not legally present in the country, Smith said Arizona could argue it is not interfering with the system of immigration.
While Kagan is not hearing the case, her absence also creates the possibility of a 4-4 tie. And, in that case, the Obama administration wins, at least for the time being because it leaves intact the injunction issued by U.S. District Court Judge Susan Bolton and upheld by the 9th Circuit. That does, however, leave open the possibility the high court will have to look at the issue again after Bolton has a full-blown trial on the merits of the law, something she has held off doing until the Supreme Court issues its decision, likely in June.
Bender said while the justices are looking at the legal issues, they are not immune to what is going on around them. That includes a hearing the day before at the Senate Judiciary Committee, where one of the scheduled witnesses is former state Sen. Russell Pearce, the sponsor of the law.
“They read the papers,” Bender said of the justices.
“If Russell Pearce should look like a crazy man in that hearing and come across as anti-immigrant, anti-federal government, a loose cannon, that would hurt the state,” he said.