It is always perilous to predict a U.S. Supreme Court case outcome based on the questions the justices ask during oral argument. However, given the significance of Arizona v. United States and its potential implications for our country’s citizens and residents, speculation is inevitable. In my view, it is likely that parts of Arizona's SB 1070 immigration law will be upheld, though likely with some limitations.
The Supreme Court is considering four separate parts of SB 1070. Two provisions – criminalizing employment by the undocumented and making it unlawful to be undocumented within the state’s boundaries – were struck down unanimously by the lower courts. Two other provisions – authorizing warrantless arrests where state law enforcement officials believe that individuals are deportable and requiring law enforcement officials to check immigration status during routine matters – have generated more dispute among judges.
Based on today’s questioning, it appears that the Supreme Court will reject those parts of SB 1070 which criminalize employment and make it unlawful to be undocumented within Arizona. The justices pressed Arizona’s attorney, not the U.S. Solicitor General, regarding these parts of the law. Only Justice Scalia seemed inclined to defend the idea that Arizona is sovereign in a manner which would allow it to deport people from its borders. Chief Justice Roberts, as well as Justices Breyer, Alito, and Sotomayor, asked hypothetical questions about immigration status checks assuming that the Court would reject the state provisions criminalizing the act of being undocumented. Particularly in light of the unanimity in the lower courts, it seems likely that the Supreme Court will find the employment and unlawful presence provisions preempted by federal law.
In their questioning, several justices seemed to be looking for ways to limit SB 1070’s immigration check provisions without striking them down. For instance, SB 1070 orders law enforcement officials to check individuals’ immigration status, but does not specify the length of time Arizona is allow to hold people while completing these checks. Given the foreign policy and civil rights implications of the law, there is a significant likelihood that the Court will uphold the law premised on an interpretation of the statute that forbids lengthy detention.
My prediction: the Supreme Court will enter a split decision and uphold parts of SB 1070. Because the Supreme Court is considering only a preemption challenge, a split decision probably means that litigation challenging SB 1070 will go on for several years as civil rights organizations pursue other challenges to the bill, including whether it essentially requires racial profiling.
Charles Roth is the director of litigation for Heartland Alliance's National Immigrant Justice Center.
Keep families together, prevent a neighbor's deportation, and protect people seeking safety.