US Supreme Court to Review Arizona SB 1070 Laws and IRLI Attrition through Enforcement Policy

December 12, 2011

The United States Supreme Court has granted certiorari in the case of Arizona v. United States, the Obama Administration’s challenge to Arizona’s landmark cooperative immigration enforcement law, known nationally as SB 1070. The high court’s December 12, 2011 decision to accept review is another favorable development in IRLI’s campaign to defend the constitutional authority of states to cooperatively enforce federal immigration laws.

States have enacted numerous immigration enforcement related laws since 2002 in response to the abject failure of the Bush and Obama administrations to fulfill the federal government’s duty to protect the sovereignty of the United States, as directed by the Congress. SB 1070-model laws enacted in states like Utah, Indiana, South Carolina, Georgia and Alabama are the latest developments in this growing area of the law.

Arizona Governor Jan Brewer signed SB 1070 on April 23, 2010. Within days, four lawsuits were filed by individuals and groups hostile to immigration law enforcement, including the ACLU. In an unprecedented move, the Obama administration filed a fifth lawsuit in July 2010, three weeks before SB 1070 was due to go into effect.

On July 28, 2010, Arizona District Court Judge Susan R. Bolton granted the Administration’s request for a preliminary injunction. That ruling prevented several provisions of SB 1070 from going into effect. Those provisions standardized state and local police procedures regarding illegal aliens, created a state crime for failure by an unlawfully present alien to comply with federal registration laws, and prohibited employment solicitation by unauthorized alien workers from ever taking effect. Judge Bolton later dismissed three of the other private lawsuits on procedural issues. The only original lawsuit remaining in Judge Bolton’s court is the case brought by the ACLU.

The State of Arizona appealed Judge Bolton’s injunction to the Ninth Circuit Court of Appeals. In April 2011, the Ninth Circuit affirmed the preliminary injunction in a 2-1 opinion. The Ninth Circuit decision focused on implied preemption. Federal Circuit Judge Richard Paez, writing for the majority, found that SB 1070 was impliedly preempted—that through the actions of Congress and of the Obama administration, Arizona did not have the authority to pass a law like SB 1070. Circuit Judge Carlos Bea, writing in dissent, believed that provisions of Arizona’s law was not only permitted, but specifically contemplated by statutes passed by Congress, including a statute which requires the federal government to respond to immigration status verification requests (8 U.S.C. § 1373) and a statute which expressly contemplates state and local officers assisting in immigration enforcement (8 U.S.C. § 1357(g)(10)).IRLI, in collaboration with the American Center for Law and Justice, filed amicus briefs supporting the State of Arizona with both the district court and the Ninth Circuit on behalf of numerous United States Representatives and Senators. IRLI and the ACLJ also filed an Amicus Brief before the United States Supreme Court urging it to grant certiorari due to the national significance that this case represented—namely the threat to Arizona’s state sovereignty by the Ninth Circuit’s Opinion and a flawed preemption analysis which missed that the clear intent of Congress for states to join in immigration enforcement efforts.

IRLI believes the high court’s decision will be favorably influenced by an earlier 2011 immigration preemption case, the landmark decision of Chamber of Commerce v. Whiting. Whiting was a challenge to Arizona’s 2007 Legal Workers Act, which required Arizona employers to use the federal E-Verify system and prohibited them from hiring unauthorized workers. The Legal Workers Act also suspended the business licenses of employers that knowingly hired unauthorized workers.Part of the Whiting opinion addressed whether states were impliedly preempted from suspending the business licenses of employers who hired unauthorized workers. The Supreme Court stated that there was a “high threshold” that must be met to find that “a state law is to be pre-empted for conflicting with the purposes of a federal Act’” and that “[i]mplied preemption analysis does not justify a ‘freewheeling judicial inquiry into whether a state statute is in tension with federal objectives.’” Prior to Whiting, the last time the Supreme Court offered any major guidance on state laws involving immigration was in 1976—in the case of De Canas v. Bicawhich upheld a California law prohibiting the employment of unauthorized workers.

See our September 19, 2011 blog post for a link and discussion of the IRLI-ACLJ brief supporting today’s grant of high court review. The IRLI-ACLJ amicus briefs filed in 2010 with the Arizona federal district court and the Ninth Circuit on behalf of dozens of concerned U.S. Representatives and Senators are attached here and here.