The good news at today’s Supreme Court argument on Arizona’s SB 1070 immigration law is that the justices appeared likely to strike some of the law down. States are not permitted to set their own immigration policy because immigration, like all other foreign policy matters, is reserved to the national government. There are probably not five votes to eliminate this rule altogether and allow Arizona to criminalize the mere act of being an undocumented immigrant.
The bad news is that the “show me your papers” provision requiring police to determine the immigration status of many people they have “reasonable suspicion” to believe is not in the country legally, is likely to be upheld. And it is likely to be upheld due to a fairly strained reading of federal law.
A majority of the Court appeared sympathetic to Republican superlawyer Paul Clement’s argument that, even if the Court does not eliminate the longstanding rule against states’ setting their own immigration policy, federal law effectively deputizes Arizona to seek out and discover undocumented immigrants within its borders. Under the provision Clement relies on, states are permitted to “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” So Clement claims that SB 1070 simply “cooperates” with the federal government by helping to identify undocumented immigrants that federal officials can then detain or deport.
There are a number of problems with this argument, but the most important one is that Arizona is not “cooperating” with the Attorney General in anything — a reality that is pretty conclusively demonstrated by the fact that the Attorney General is suing the state of Arizona to get them to stop enforcing SB 1070. It is a bizarre form of “cooperation” that leads your partner in an endeavor to seek a federal court order to get you to stop trying to lend a hand.
An equally important problem, which Solicitor General Don Verrilli relied upon heavily in Court, is that it’s also not true that federal law calls for the kind of sweeping “attrition through enforcement” regime that SB 1070 expressly states is its goal. The federal government does not deport people who are likely to be tortured in their home country, for example, or many victims of domestic violence. Likewise, federal immigration law delegates authority to set immigration enforcement priorities to the executive branch of the federal government, and the executive branch has used that authority to focus enforcement on high priority groups such as violent criminals and repeat offenders. SB 1070 forces the federal government to waste limited resources deciding how to handle low-priority immigrants that it has no intention of pursuing enforcement actions against — resources that could instead be spent on higher priority targets such as violent felons.
One silver lining came early in the argument when several justices, including crucial swing vote Justice Kennedy, appeared bothered by the fact that the “show me your papers” provision might permit Arizona to detain an individual longer than they would normally be detained while the state is trying to figure out whether or not the person is undocumented. A few of these questions even suggested that the provision could be unconstitutional if it extends the period when someone can be detained. Chief Justice Roberts, however, also seemed to find a way to resolve this dilemma that the Court’s conservatives could find appealing.
The Supreme Court allows two kinds of challenges to a law: “facial” challenges, that claim the law must be effectively striken from the books, and “as applied” challenges, which claim that the law cannot be applied to a particular person or entity. In order to bring a facial challenge, however, a party must show that “no set of circumstances exists under which the Act would be valid.” Roberts pointed out that, while there may indeed be some people who spend additional time in jail because of the show me your papers provision, many people will simply have their immigration status checked while they are already stuck in jail for other offenses. Thus, because not everyone who runs afoul of SB 1070 will suffer through extended detention, the law is valid with respect to them.
This is not an entirely off the wall argument, but it is also ironic in light of another high-profile case the Supreme Court recently heard. Conservative Judge Jeffrey Sutton relied on this exact same distinction between facial and as-applied challenges in rejecting a challenge to the Affordable Care Act, yet the conservative justices largely blew off Sutton’s reasoning during oral arguments last month. It is not at all clear how Roberts can say that this distinction is powerful enough to save a Republican governor’s anti-immigrant law, but not powerful enough to save a Democratic president’s signature accomplishment.
In other words, if Roberts is interested in acting like a judge and not a partisan operative this Supreme Court term, he is caught in quite a dilemma. The very reason he offered to save SB 1070 also requires him to save Obamacare.