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Oral argument reports: Supreme Court appears poised to uphold key part of Arizona Immigration Law (SB 1070)

Oral argument reports: Supreme Court appears poised to uphold key part of Arizona Immigration Law (SB 1070)

The Supreme Court heard argument this morning on the challenge to Arizona’s immigration law, S.B. 1070.  See my post yesterday for background.

The transcript and audio will not be available until the end of the week (the same day release on the Obamacare argument was an exception to the general policy of releasing the transcript and audio only after the Justices’ Friday conference.) (added) The transcript will be available later today. [transcript here]

Based on initial reports, below, it appears the Justices are inclined to uphold at least the section of the law that permits state authorities to inquire as to immigration status (usual caution, questions asked at oral argument do not necessarily predict outcome).

From Tom Goldstein at ScotusBlog, who attended the argument:

The argument is just finishing.  Most of the time was spent on the provisions permitting the state to inquire about immigration status.  Those provisions are likely to be upheld because the federal government can always decline to enforce immigration laws even if they learn about someone with a legal staff. [sic]  The court may be unanimous on that question.

Very little time was spent on the provisions making it a state crime to violate your federal immigration status.  But I think there will be at least were at least four votes to strike those provisions down (at least the failure to register), meaning the Ninth Circuit’s decision will be upheld in that respect.  The court is also likely to leave open the question whether as applied challenges can be brought against all the provisions of the statute.

A similar take from The Wall Street Journal’s live blog:

Supreme Court justices seemed inclined to allow at least one provision of Arizona’s tough anti-immigration law….

From the tenor of the oral argument, it’s possible a ruling in the case may not fall strictly along ideological lines.  Some of the court’s liberal justices, though expressing concerns about the Arizona law, wondered whether the state could be prohibited from checking the immigration status of individuals within its borders….

What is less clear is the fate of two sections of the Arizona law that create new state-law crimes based on violations of federal immigration law.  Justices across the ideological spectrum at times asked skeptical questions of those latter provisions….

At the end of the morning’s session, it appears that the court may be inclined to uphold sections of the Arizona law that call on officers to check the immigration status of individuals they stop.

More to follow as available.

Updates:  The impression of the argument appears unanimous:

CNN: “Parts of Arizona’s sweeping immigration law received a surprising amount of support from a short-handed Supreme Court Wednesday…. Even liberal Justice Sonia Sotomayor told the federal governments’ lawyer his case was “not selling very well.””

NYT on Twitter:

LA Times:

Before U.S. Solicitor General Donald Verrilli Jr. could deliver his opening comments, chief justice John Roberts in an unusual move interrupted to say that “no part of your argument has to do with racial or ethnic profiling.”

Verrilli agreed and said Arizona’s law should be struck down because it conflicts with the federal government’s “exclusive” power of immigration.

But he ran into a barrage of skeptical questions, including from some of the court’s liberals. Justice Stephen Breyer said he did not see why Arizona’s police would violate federal immigration law if they simply notified federal agents they had a possible illegal immigrant in custody. Breyer said he would be concerned only if the state said it could arrest and jail illegal aliens on its own.


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Midwest Rhino | April 25, 2012 at 1:11 pm

Who cares if Arizona can identify illegals … if they are still required to feed them, school them, provide health care, and house them, all while being sure not to offend them? (offending illegals is probably breaking an enforced law)

Who needs armies … just send a million across the border and demand AZ taxpayers provide for them, per federal mandate. The standard of non-enforcement has established an expectation that supersedes written immigration law. Federalism be damned.

Nice. Chief Justice Roberts kneecapped Verrilli right out of the gate, preventing him from saying “well we think it’s also profiling, but we’re not making that argument” because then the Conservative Justices would have asked the “why not” question, and then Verrilli would have been toast.

The state inquiry provisions are going to be upheld. As Mark Levin said the other day: Plenary power does not mean exclusive power.

It has been my understanding that striking this down will also strike down several preceding SC rulings (precedent, established law; i.e. the New, Living Constitution)

Further, to say Arizona cannot enforce federal law is akin to saying Arizona cannot arrest bank robbers–as that is also under federal jurisdiction.

It is also my understanding that 1070 was written to mirror federal law, not exceeding it.

I invite any and all corrections to my understanding-

    HarrietHT in reply to Browndog. | April 25, 2012 at 1:58 pm

    Agreed, Browndog.

    And I’d like to say how grateful I am to have legalinsurrection as a resource for issues such as these. Over at Volokh, the writers refer to AZ1070 as “draconian.” They show their leftist bias while at the same time they totally ignore that Arizona’s law is a MIRROR of federal law.

There are practical reasons for administrative districts (e.g. nation). The selective rule of law employed to support illegal immigration only serves as a contributor to progressive corruption of the system and society. Illegal immigrants displace citizens at work, school, and as beneficiaries of social services. Immigration in general, but especially illegal immigration (i.e. unmeasured), is a principal contributor to overpopulation.

There is a related issue to illegal immigration which is too often ignored. What circumstances in their home nations would motivate them to leave and migrate to America?

In any case, with probable cause, demanding identification is not discrimination, as this is merely an equal application of law.

The first step is to prevent the invasion by stationing the military on the border. The second step is to precisely define natural-born citizenship (e.g. both parents are citizens). The third step is to address the over 10 million (and likely twice that number) illegal aliens already here. This would be done through enforcing their illegal status and removing all incentives to remain. It would also require addressing the problems in their home nations, which would motivate their departure. The governments in those nations need to be held accountable. The domestic interests, including: political, economic, and non-profit, that leverage their presence need to be held accountable. The rule of law needs to be restored.

    HarrietHT in reply to n.n. | April 25, 2012 at 2:31 pm

    Exactly right, in every single word, n.n. Now if only you were our presidential nominee!

    Milhouse in reply to n.n. | April 26, 2012 at 2:14 am

    What has “natural born citizenship” got to do with this? These people are not running for president!

All this fuss when all that needs to be done is for the feds to enforce current laws.

But that would not fit in with the current administration’s policy of creating dependence in order to garner votes.

Send the whole Chicago cabal of liars, thieves and incompetents packing in November…

Don’t forget this in all the back and forth over SB1070. 2010 Census figures: AZ 6.4m citizens, 16th. largest state. AZ estimated illegal population 460k 7% of the population. AZ self identified Hispanic population 1.6 million, illegals compared to self identified 25%. Phoenix AZ highest kidnapping rate in the nation, Tucson #2. Number of federal park lands designated no-go areas, two. Imagine why AZ would feel compelled to enact such a law as SB1070.

Goldstein provides some good coverage, but he is a leftist tool when in comes to PC and conventional liberal wisdom. The “as applied” challenges are even invited by the AZ law, which specifically states it is nondiscriminatory. There was never a real question of that, was there?

Can you even challenge a law that hasn’t been implemented for being discriminatory “as applied” anyway? Who has standing to do that?

I feel bad for Verrilli: as with the ObamaCare argument, he is going to be blamed for poor performance. But it is like chewing out the girl at the perfume counter for poor salesmanship when all you gave her to sell is Eau de Skunk.

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