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:
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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