By Brandon Moseley
Alabama Political Reporter
On April 25th, the Supreme Court will hear oral arguments in Arizona v. United States. Like in Alabama the Obama Administration has sued the state of Arizona over the legality of the immigration law. Where Alabama’s immigration law is HB 56, their law is known as “SB 1070.” The federal government’s case against the State of Alabama is on hold in the Federal Appeals Court in Atlanta while that Court waits on the Supreme Court’s ruling in Arizona vs. the United States. The Supreme Court’s ruling on SB 1070, Support Our Law Enforcement and Safe Neighborhoods Act, will undoubtedly have an effect on the eventual ruling on Alabama’s anti-illegal immigration law, the Hammon-Beason Alabama Taxpayer and Citizen Protection Act, as well as similar bills in South Carolina, Utah, and Georgia.
The Immigration Policy Center wrote, “More than any matter in recent history, the case involves a range of important questions regarding the role that states may play in the enforcement of federal immigration law. The Court’s decision will likely affect not only the future of SB 1070, but the fate of other state immigration laws being challenged in court and the odds of similar laws being passed around the country.”
Bill Winograd with the Immigration Policy Center released a report Monday on the arguments that are likely to be raised in SB 1070. The Obama Administration sued the State of Arizona shortly after passage of SB 1070 contending that “its provisions could not be enforced because they were inconsistent with—and were therefore “preempted” by—federal immigration law.” Similarly the Americans Civil Liberties Union (ACLU) and the National Immigration Law Center have also sued the State of Arizona.
The former Solicitor General of the United States during the Bush Administration, Paul Clement will argue the case for Arizona before the Supreme Court. Solicitor General Clement just argued the case that Alabama and 26 other states plus the NFIB argued when they challenged the constitutionality of President Obama’s radical transformation of the healthcare industry (Obamacare) before the Supreme Court. The Supreme Court’s ruling on that decision is expected in June. Similarly, the United States will be represented by the Obama Administration’s Solicitor General, Donald Verrilli, Jr.
16 states and 56 Republican members of Congress have filed amicus briefs before the Court in favor of Arizona’s position. Similarly 11 states, 68 Democratic members of Congress, and 17 foreign governments have filed amicus briefs in favor of the Obama’s Administration’s position.
The Obama Administration is not arguing that SB 1070 is unconstitutional, they are arguing that it is not enforceable because it preempts federal law.
Winograd writes, “Before determining whether the enjoined provisions of SB 1070 are “preempted,” the Court will need to determine which party bears the burden of proof. If the Court applies a presumption against preemption, the United States bears the burden of demonstrating that Congress has specifically prohibited states from enforcing each of the four contested provisions. By contrast, if the Court applies a presumption for preemption, Arizona must show that Congress affirmatively permitted states to enforce such laws. This preliminary issue is very important—and could determine the ultimate outcome of the case—because the party bearing the burden of proof must point to specific federal laws that expressly support its position.”
Winograd continues, “Arizona asks the Court to apply a presumption against preemption, as courts typically do in preemption cases, arguing that there is “no immigration exception to the general rules of preemption.” By contrast, the United States argues that because immigration is an area of law traditionally reserved for the federal government, the Court should presume the enjoined provisions of SB 1070 are preempted.”
Arizona is arguing that “state officers have “inherent authority” to arrest persons suspected of violating all federal laws, including civil immigration laws, unless Congress directly forbids them from doing so. Again, the United States argues that because immigration has historically been an area of exclusive federal responsibility, state law enforcement officers may not make immigration arrests unless specifically authorized by Congress or in cooperation with federal officials.”
Arizona is arguing that the state has the power to write laws that “mirror” existing federal law. The Holder Justice Department argues that the Arizona Law does not mirror existing federal law because the federal government deports people they don’t throw them in jail.
Winograd writes that, “Arizona argues that state officers have “inherent authority” to arrest persons suspected of violating all federal laws, including civil immigration laws, unless Congress directly forbids them from doing so. Again, the United States argues that because immigration has historically been an area of exclusive federal responsibility, state law enforcement officers may not make immigration arrests unless specifically authorized by Congress or in cooperation with federal officials.”
Similarly the State of Arizona is arguing that since Congress has not specifically prohibited them from writing any laws the criminalize illegal aliens soliciting for work the state has that power. The U.S. Gov. is arguing however that the state can not make such laws unless they are specifically empowered to do so by an Act of Congress.
Obama appointee and former Solicitor General of the United States Elena Kagan has recused herself making a tie possible in this case. If the Court ties 4-4 in this case then the 9th Circuit Court of Appeals ruling is automatically upheld and the 9th Circuit Court of Appeals preliminary injunction against enforcement of four key provisions of SB 1070 will remain in place.
To read the report in its entirety: