The U.S. Supreme Court will review Arizona's tough law on illegal immigration sometime next year.
In an unsigned order Monday, the justices accepted the request of Gov. Jan Brewer to consider whether a federal judge erred last year in blocking Arizona from enforcing key provisions of the law. Judge Susan Bolton had concluded that SB 1070 illegally infringed on areas reserved exclusively for the federal government.
Officially, the issue before the court is whether Bolton acted correctly in issuing the injunction.
But in barring enforcement, Bolton concluded that the Obama administration was likely to prevail in its ultimate bid to have the statute declared unconstitutional. That means the high court will have to look at SB 1070 itself and determine exactly how far states can go in enacting their own immigration laws.
Brewer contends the U.S. Constitution does let states play a role.
"Arizona did not act in haste, Arizona did not act recklessly," the governor said.
"We were acutely aware of the need to respect federal authority over immigration-related matters," Brewer explained. "SB 1070 merely authorizes cooperative law enforcement and imposes sanctions that parallel federal law."
The governor acknowledged that the decision by the justices to hear arguments, probably this spring, does not necessarily mean the majority intends to let SB 1070 - or similar laws subsequently adopted in other states - take effect. But she believes it is a good sign nonetheless.
"States deserve clarity from the court in terms of what role they have in fighting illegal immigration," Brewer said. "We will now get that clarity."
The U.S. Department of Justice, which brought the lawsuit against the state - and had asked the high court to stay out of the fray at this point - had no immediate comment. But the move disappointed others who have filed their own lawsuits challenging the law.
Alessandra Meetze, executive director of the Arizona chapter of the American Civil Liberties Union, said the move suggests at least several justices do believe states can be involved in enforcing federal immigration law.
"We don't agree," she said. "We feel that the federal government under the Constitution and the Supremacy Clause has the right to enforce its borders and should be regulating immigration at that federal level."
Victor Viramontes, senior counsel for the Mexican American Legal Defense and Education Fund, said he hopes the justices agreed to review the Arizona law not to overturn Bolton's ruling but to set some standard for federal trial judges who are reviewing similar laws. The Obama administration is moving against South Carolina, Utah and Alabama which have adopted provisions similar to Arizona.
It also is possible the high court may agree with Brewer only part of the way.
For example, one provision of the challenged law requires police to question those they have stopped if there is "reasonable suspicion" that person is in this country illegally. Brewer's attorneys argue this is no different than the authority of federal law enforcement to do the same thing.
But the Arizona law also makes it a state crime for someone not in this country legally to seek work. Bolton, in her order last year, pointed out there is no parallel in federal law.
Brewer said she was not familiar with figures released Monday by the Border Patrol showing a sharp drop in the number of people apprehended trying to enter this country illegally. Officials have said those numbers, one fifth of what they were in 2000, shows increased federal enforcement is working.
But Brewer said those numbers mean nothing to the people living along the border.
"They are still facing dramatic invasion from illegals coming across the border," the governor said.
"You can speak to the family of Rob Krentz," she said, referring to the Cochise County rancher believed murdered by smugglers in this country illegally. "And you can speak to the people that wake up every morning in the metropolitan areas of Tucson and of Phoenix with drop houses next door to them, that regardless of how many they have deported the problem still is here and alive in Arizona."
The governor said Arizona has done well at the high court before, pointing to the ruling earlier this year when the justices upheld the state's employer sanctions law. That law allows state judges to suspend or revoke the business licenses of companies found guilty of knowingly hiring undocumented workers.
That, however, may not be a good parallel for Brewer.
In that case, the justices split 4-4, with Justice Elena Kagan recusing herself because of her prior role as the federal solicitor general. That tie vote let the lower court ruling upholding the law stand.
Kagan is again recusing herself on this case. But here, a tie vote affirms the ruling by the 9th Circuit Court of Appeals which sided with Bolton.
Brewer said she is hoping that the court will be swayed by the burden the blocked law has had on Arizona.
"Our state spends hundreds of millions of dollars every year incarcerating criminal aliens and providing education and health care to individuals who have entered and reside (in the country) in violation of the federal law," the governor said.
The Obama administration, however, has its own claims of hardship. Attorneys for the Department of Justice have argued that letting each state have its own immigration laws interferes with the exclusive right of the federal government to set foreign policy.
Aside from the provisions on police checking immigration status and barring undocumented immigrants from seeking work, SB 1070 also:
• Prohibits police from releasing someone who has been arrested until checking that person's immigration status.
• Lets officers make arrests without a warrant of foreign nationals, legal or otherwise, who commit offenses that make them "removable" from this country under federal law.
• Allows police to arrest any foreigner who fails to carry proof he or she has a legal right to be in the United States.