Scholars Eye SB 1070 as Among Court’s ‘Biggest Immigration Cases Ever’

Julianne Hing Dec 15, 2011

On Monday the Supreme Court announced that it’s ready to settle the contentious dispute over whether states, and not just the federal government, get to have a hand in enforcing immigration law.

The Supreme Court will be examining Arizona’s SB 1070, the first law in the country that made it a state crime to be an undocumented immigrant. Technically, the Supreme Court is only examining four key provisions from the broad law, including the mandate that law enforcement officers question anyone they suspect to be an undocumented immigrant. But the high court’s ruling will likely have far-reaching impacts on the lives of undocumented immigrants, and those suspected of being undocumented.

“This case has the potential for being one of the biggest immigration cases decided by the Supreme Court ever,” said Kevin Johnson, dean of the UC Davis School of Law. “It touches on immigration. It touches on civil rights. It touches on state and federal power. And it’s got a real cast of characters too.”

One of them, Arizona Gov. Jan Brewer, who’s been an unapologetic backer of SB 1070 and the copycats it has spawned since it became law in April 2010, praised the Supreme Court’s decision to take up the case, and defended the controversial law’s constitutionality in the face of a forceful challenge from the Department of Justice.

“I signed SB 1070 in order to give our state and local law enforcement one more tool with which to combat illegal immigration, while acting in concert with federal law and the U.S. Constitution,” Brewer said in a statement this week. “As I [signed SB 1070], I was keenly aware of the need to respect federal authority over immigration-related matters.”

Not so, the federal government has argued. The DOJ, which sued Arizona, and has also filed separate lawsuits against Utah, Alabama and South Carolina over their unique SB 1070 copycat laws, has argued that under the Supremacy Clause of the Constitution, the federal government and the federal government alone have the right to create and enforce immigration laws. The DOJ has also argued that it has an enforcement plan, explained University of Texas law professor Denise Gilman, and that state laws that funnel more people into local immigration offices siphon away resources the federal government needs to focus on its actual priorities.

“What it signals is a decision by the Supreme Court that it is time to take up this question of where the boundaries lie between federal and state action on immigration enforcement,” said Gilman.

The case arrived in front of the high court because of a complex legal tussle; Arizona Gov. Jan Brewer is challenging a lower court’s decision to block SB 1070’s key provisions from being enforced while the courts deal with the actual constitutionality of the provision. Brewer’s argued that the law should go into effect anyway. Still, it’s likely that the court will address the broad range of issues SB 1070 raises, not just the injunction request.

“I think the Supreme Court understands that this is a pressing issue for the state and for immigrants as well, and these issues are coming across the country, and you can’t deny it if you wanted to,” Johnson said.

“There’s a record number of these types of laws getting passed right now,” he said, adding that the court likely took up the case now because it saw a need for clarity on the issue, especially given the number of disparate rulings on these state laws.

“Whatever the Supreme Court decides in the Arizona case will absolutely impact the other litigation that is taking place,” Gilman said.

For the meantime, she said, the federal government will likely keep pressing hard to reign in states that attempt to pass their own laws, even as ICE faces a similar problem of its own making.

This article was originally published by Colorlines.

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