Immigration Fight Echoes Health-Care Case at High Court

Activists opposed to Arizona's S.B. 1070 law, paint a banner at the Puenta Movement office in Phoenix, on April 24, 2012. Close

Activists opposed to Arizona's S.B. 1070 law, paint a banner at the Puenta Movement... Read More

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Activists opposed to Arizona's S.B. 1070 law, paint a banner at the Puenta Movement office in Phoenix, on April 24, 2012.

The U.S. Supreme Court will hear echoes of its health-care arguments as it reviews Arizona’s illegal-immigrant crackdown, a law that inspired similar moves across the country and sparked a confrontation with President Barack Obama.

Like last month’s debate over health care, the immigration case set for argument today pits the federal government against the states over their respective spheres of power. Politics envelops the case, with Republican-controlled states backing Arizona against the Obama administration.

The case “has all the ingredients of important law, important federalism principles and hot politics,” said Steven Schwinn, a constitutional law professor at John Marshall Law School in Chicago.

The case will define states’ role on an issue some of them say has become a crisis: the presence of more than 10 million unauthorized aliens in this country. Arizona’s law, the first of its kind, would require police to check the status of people they suspect are in the U.S. illegally, and to arrest those they believe are eligible to be deported. The case may affect laws in Alabama, South Carolina, Georgia, Utah and Indiana.

Unlike health care, the administration is on offense in the immigration case, challenging four provisions in the Arizona law. Government lawyers say S.B. 1070, as the law is known, encroaches on the exclusive federal right to set immigration policy.

Lawyers Duel Again

The federal government “has the ultimate authority to regulate the treatment of aliens while on American soil because it is the nation as a whole -- not any single state -- that must respond to the international consequences of such treatment,” U.S. Solicitor General Donald Verrilli argued in court papers.

Verrilli will be making his first appearance before the justices since he argued the health-care case in March. He again will square off against Paul Clement, a Washington lawyer who represented 26 states challenging the health-care law and will be defending the Arizona immigration measure today.

Arizona’s law would require police officers to check immigration status when they arrest or stop someone and have “reasonable suspicion” that the person is in the U.S. illegally. It would authorize officers to arrest anyone they have “probable cause” to believe is eligible to be deported.

The law also would bar aliens without the proper papers from seeking or performing work. It would be a state criminal offense for a foreigner to be in Arizona without correct documentation, subjecting violators to as much as 30 days in prison.

Cost to Arizona

The parts of Arizona’s law being challenged have never taken effect. A divided federal appeals court blocked them.

Arizona says its 370-mile border with Mexico is the crossing point for half the nation’s illegal immigrants, giving it the right to tackle a problem the national government has failed to address.

“Arizona could no longer afford the cost of all this illegal immigration into the state of Arizona, into our education system, our hospital system and prisons,” Arizona Governor Jan Brewer, a Republican who signed the measure in 2010, said in an interview. “The cost was just overwhelming.”

Arizona had 360,000 unauthorized immigrants in 2011, according to the U.S. Homeland Security Department. During the last four decades, 12 million immigrants came to the U.S. from Mexico, most illegally, according to a report released yesterday by the Pew Hispanic Center, a nonpartisan research group in Washington. Net Mexican migration to the U.S. has now stopped and may have reversed, the report said.

Beyond Cooperation

The central question for the justices is whether the U.S. Immigration and Nationality Act pre-empts the Arizona provisions. That statute says states may cooperate in enforcing federal law.

The administration contends Arizona has gone beyond cooperation and is trying to implement its own immigration policy. Verrilli says the state measure would undermine the federal government’s effort to give highest priority to illegal aliens who threaten public safety and those who belong to gangs that smuggle other aliens, drugs and weapons.

The mandatory nature of the Arizona law means that police officers will be asking federal officials to verify the immigration status of jaywalkers, Verrilli said in court papers.

The law “changed Arizona’s policy from one of cooperation to one of confrontation,” Verrilli argued.

Clement, arguing for Arizona, countered that local police officers “have inherent authority to enforce the immigration laws, both criminal and civil.”

Question of Deference

He added that states don’t have to defer to the federal government’s priorities, as Verrilli had suggested.

“While this domineering arrangement might reflect an efficient relationship between dance partners, it is an odd notion of cooperation between sovereigns,” argued Clement, who served as solicitor general under President George W. Bush.

As with the health care argument, the immigration case might split the court along ideological and party-based lines. That happened last year, when the court’s five Republican- appointed members voted to uphold a separate Arizona law that threatens companies with loss of their corporate charters if they hire illegal immigrants.

The 5-3 ruling said a federal law governing immigrant hiring leaves room for states to impose their own penalties for non-compliance.

Kagan Not Participating

Justice Elena Kagan didn’t take part in that ruling and isn’t participating in today’s case either. She played a role in the litigation as Obama’s top Supreme Court lawyer before her 2010 appointment to the court.

One issue not directly before the justices is the contention that the law will lead to racial profiling by police officers. That claim is part of a separate lawsuit being waged by civil rights advocates against the Arizona measure.

The high court might strike down some aspects of the law while leaving the rest intact, said John E. Eastman, a professor at Chapman University School of Law in Orange, California.

The “most vulnerable” provisions are those making it a crime not to carry registration documents and barring illegal aliens from working in Arizona, said Eastman, who filed a brief supporting the law. “Even if those two provisions are struck down, I think the rest stands.”

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editor responsible for this story: Steven Komarow at skomarow1@bloomberg.net

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