Supreme Court hears arguments on SB 1070
PHOENIX -- Saying the federal government has "largely ignored' pleas for help, Arizona asked the U.S. Supreme Court Wednesday to let state and local police enforce new laws aimed at illegal immigrants.
Paul Clement, a former U.S. solicitor general hired by Gov. Jan Brewer, argued that U.S. District Court Judge Susan Bolton was wrong last year in approving the request by the Obama administration to enjoin the state from enforcing key provisions of SB 1070. That law is designed to give police more power to detain and arrest suspected illegal immigrants.
She ruled that the law interferes with the exclusive right of the federal government to regulate immigration, a decision upheld just this past April by the 9th U.S. Circuit Court of Appeals.
Clement said the lower court judges were operating under the presumption -- erroneous from his perspective -- that states can get involved in immigration enforcement efforts only when the federal government gives specific permission.
"That's not the way federalism and preemption are supposed to work,' he said.
"States have plenary police power and that cooperative law enforcement is the norm,' Clement wrote in his brief to the high court. "States, unlike federal agencies, are not creatures of the federal Congress and do not depend on federal statutes for authorization.'
But Clement needs to do more than convince the justices that the Arizona law does not conflict with federal statutes.
That's because there has been no ruling on whether the law is legal. Bolton is not set to hear arguments on that until at least next year.
Instead, the issue is whether it was appropriate for her to put the law on "hold' until the trial. And key to that is what courts call the "balance of hardships,' meaning who is more likely to be harmed if the law is or is not allowed to take effect while its legality is litigated.
In upholding the injunction, appellate Judge Richard Paez said letting Arizona enforce its own immigration laws would harm the international interests of the United States.
Clement, in Wednesday's filing, responded by saying there are about 400,000 illegal immigrants in Arizona alone, with 230,000 of them holding jobs in the state, amounting to 7.4 percent of the total workforce. And he said more than 17 percent of those locked up in state prisons, at state expense, are in this country illegally.
"Arizona spends several hundred million dollars each year incarcerating criminal aliens and providing education and health care to aliens to entered and reside in this country in violation of federal law,' he wrote. He said it was against that backdrop that lawmakers approved and Brewer signed SB 1070.
"The injunction against SB 1070 leaves Arizona and its people to suffer from a serious problem without any realistic legal tools for addressing it,' Clement continued. " Such a conclusion is irreconcilable with the basic tenets of our federalism, and border states should not be placed in such an untenable position.'
Brewer, in a prepared statement, echoed the theme.
"SB 1070 was Arizona's way of saying that we won't wait patiently for federal action any longer,' she said. "If the federal government won't enforce its immigration laws, we will.'
Provisions of the law Bolton blocked from taking effect include:
- Requiring a police officer to make a reasonable attempt to check the immigration status of those they have stopped;
- Forbidding police from releasing anyone they have arrested until that person's immigration status is determined;
- Making it a violation of Arizona law for anyone not a citizen to fail to carry federally issued documentation;
- Allowing police to make warrantless arrests if there is a belief the person has committed an offense that allows them to be removed from the United States;
- Creating a new state crime for trying to secure work while not a legal resident.
Xochitl Hinojosa, a spokeswoman for the Department of Justice, declined comment on Wednesday's filing.
Noting requires the justices to review the injunction. They could instead wait until Bolton rules on the legality of the law -- something that won't happen this year -- and goes through the regular appellate process before looking at the issue.
But the justices may want to jump in anyway.
Since Arizona enacted SB 1070, several other states have crafted their own versions. And the Department of Justice, which sued to block the Arizona law and got the injunction here, is seeking to bar enforcement of a similar Alabama law.
Clement told Capitol Media Services that just the involvement of the Obama administration may be enough to get the high court's attention.
"It's not every day that the federal government comes in to federal court and tries to enjoin a state law from going into effect,' he said. "That's a pretty extraordinary step.'
Clement said he presumes the Supreme Court will give the Obama administration two months to file its response. He said it will not be known until late this year whether the justices will hear the case or allow the injunction to remain in place.