Arizona Immigration Law Faces Supreme Court Test

By JESS BRAVIN and MIRIAM JORDAN

Arizona’s campaign to push out illegal immigrants heads to the Supreme Court this week, in the second major challenge to federal power the justices have taken up in less than a month.

The Obama administration argues a 2010 Arizona measure aimed at fighting illegal immigration conflicts with federal law. The state law requires police to check the immigration status of people they stop if suspicious of their right be in the U.S.

Protesters gathered around Arizona State Sen. Russell Pearce outside the Sandra Day O’Connor Federal Courthouse in Phoenix last year.

It also makes it a crime for immigrants without work permits to seek employment.

Both of these provisions, among others, have been blocked by federal courts for interfering with federal immigration laws. Even so, the Arizona statute has sparked copycat measures in Alabama and other states.

All parties agree immigration is an area of federal supremacy. Last year, the Supreme Court upheld a separate Arizona law putting out of business companies that repeatedly hire illegal immigrants. Over objections from the Obama administration, the U.S. Chamber of Commerce and labor groups, the court held 5-3 that Congress had given states authority to strip corporate charters and other essential permits to punish employers for immigration violations.

Architects of the Arizona law now under challenge say they sought to reduce the state’s illegal population, or achieve “attrition by enforcement.” They call the law a success because many immigrants without papers have voluntarily left.

Critics say the state’s image has suffered, and some groups have canceled conventions amid calls for a boycott of Arizona. The law’s author, Republican state Sen. Russell Pearce, lost his seat in a recall vote last year.

Although the legal issues are unrelated, the politics surrounding the dispute track those of last month’s arguments over President Barack Obama’s health-care overhaul. Both cases pit the administration and Democratic-led states against Republican-led states and tea-party sympathizers aiming to challenge the federal government. Even key personnel are the same: Solicitor General Donald Verrilli, the administration’s top litigator, will again square off against Paul Clement, a Republican former solicitor general representing the state, in arguments beginning Wednesday.

Grant Woods, a Republican former Arizona state attorney general and former chief of staff to Sen. John McCain (R., Ariz.), said the state had an “enormous problem” with illegal immigrants, but “that does not mean that the solution is for Arizona or any other state to adopt its own immigration policy.” Mr. Woods, one of several former state attorneys general to file a brief siding with the Obama administration, says the dispute is rooted in Congress’s failure to overhaul immigration.

Mr. Clement’s brief says Arizona was forced to act against illegal immigrants because the federal government has failed to secure the U.S. border with Mexico. A “flood of unlawful cross-border traffic” has plagued the state with an “influx of illegal drugs, dangerous criminals and highly vulnerable persons,” Mr. Clement wrote. Illegal immigrants constitute 6% of the state’s population, or 400,000, disproportionately filling state prisons, running up public-school expenditures and driving down wages for citizens and legal residents, the brief says.

Because the state law uses federal definitions on immigration status, Arizona describes it as “cooperative enforcement” of federal law, and says it isn’t going against Congress’s intent.

While many Republicans have seen little political risk in opposing the health-care law, immigration is proving trickier. Laws targeting illegal immigrants have hampered GOP efforts to gain ground among Hispanics, a fast-growing population segment that favored Democrats by a 2-1 margin in the 2010 election.

Mr. Obama opposes the law, SB 1070, while Mitt Romney, the likely Republican nominee, has said he would let such state laws take effect without federal objection.

In his brief, the administration’s Mr. Verrilli rejects the notion that the federal government is neglecting to secure Arizona’s border, saying it has stepped up enforcement. Regardless, the government says, Arizona’s immigration policy conflicts with the policy legislated by Congress, which it says aims to balance a host of competing concerns rather than focusing “solely on maximum enforcement.”

Lower courts have agreed with the administration and blocked enforcement of four SB 1070 provisions: requiring police to verify the immigration status of everyone they stop who they reasonably suspect may lack authorization to be in the U.S.; authorizing police to arrest any foreign citizen they believe has committed a deportable offense; making it a crime for foreigners to fail to carry registration documents; and making it a crime for illegal immigrants to seek or perform work.

Each of those provisions involves a separate legal analysis, meaning that the Supreme Court could end up upholding some but not others. The court will do so without Justice Elena Kagan, who was solicitor general when the Obama administration filed its challenge to SB 1070 and has recused herself.

The decision is likely to come in the final days of June, the same as the health-care ruling.

this article appeared on WSJ on Monday 4/22/2012

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