Supreme Court weighs fate of Arizona's immigration law

ByAlan Gomez, USA TODAY
April 23, 2012, 3:26 PM

WASHINGTON -- Arizona Gov. Jan Brewer said she didn't know what she was starting when she signed her name onto the state's landmark immigration bill just over two years ago.

"I knew that it was going to be momentous," Brewer said. "But to this extent, I had no realization."

On Wednesday, she will be sitting in the gallery of the U.S. Supreme Court as the justices consider the fate of Senate Bill 1070, which was considered the toughest state immigration enforcement law to date and served as the blueprint for five other states that followed suit the next year.

Supporters of the law say it was necessary because the federal government has failed to control the influx of illegal immigrants into the country, forcing states like Arizona to grapple with the security concerns and high costs of educating and caring for illegal immigrants.

Opponents say it unfairly criminalizes otherwise law-abiding people, opens the door for racial profiling of Hispanics legally in the country and forces state law enforcement to interfere with the intricacies of federal immigration policy.

The Supreme Court's ruling, expected in June, could have far-reaching effects on the future of state efforts to combat illegal immigration, the daily lives of the nation's 11 million illegal immigrants and, to some degree, the outcome of November's presidential election.

"This is the most important immigration case in a generation," said Warren Stewart, senior pastor at the First Institutional Baptist Church in Phoenix.

Just a month after the court entered into the legal thicket that is health care in America, the justices will be taking up one of the nation's most vexing, political and cultural issues. Once again, the courthouse steps are expected to be crammed with people supporting both sides of the debate. And the two gladiators of the health care debate will face off in a packed courtoom: U.S. Solicitor General Donald Verrilli will argue for the federal government, and former solicitor general Paul Clement will defend Arizona.

But this time, the court will be missing Justice Elena Kagan, who recused herself presumably because of her work as solicitor general under President Obama. That sets up the potential for a 4-4 tie, which would give the U.S. a victory since the injunction originally imposed by U.S. District Judge Susan Bolton in Phoenix, and upheld by the 9th Circuit Court of Appeals in San Francisco, would stand.

The case is the culmination of growing frustration in states over the inability of Washington to agree on a way to handle the country's illegal immigrants — a consensus not reached since the Reagan administration. That has resulted in a complex web of state laws that have gone in wildly different directions.

Since Arizona passed SB 1070, Alabama adopted the toughest-in-the-nation mantle with its immigration law that required K-12 school officials to check the immigration status of all new students. On the other end of the spectrum, Rhode Island joined 12 other states that allow illegal immigrants to receive in-state college tuition. And somewhere in between, Utah adopted a law that adopts Arizona-style enforcement, but also provides for a permit for some illegal immigrants to legally work in the state.

A June court ruling will raise the immigration debate just as the presidential debate kicks into the home stretch. And with Obama's re-election campaign and the Republican Party both launching their Hispanic outreach programs last week to reach an expected 12 million Hispanic voters, the ruling could energize voters on one, or both, sides of the debate.

Obama's immigration record as president has been mixed. His administration has set records each year for the number of people it deports — nearly 400,000 last year. But it has focused deportation efforts on illegal immigrants who are convicted criminals, resulting in the highest percentage of deportees having criminal records last year (about 55%) in a decade.

Mitt Romney, the former Massachusetts governor and likely Republican nominee, has called Arizona's efforts to combat illegal immigration by cracking down on businesses who hire them — but not the whole law — "a model" for the nation. He has also embraced the Arizona-inspired idea of making life so difficult for illegal immigrants that they choose to "self-deport."

A victory in Arizona v. United States would solidify either candidate's argument, but could inspire severe backlash, or support, from the ever-growing Hispanic electorate.

"It will be a seismic shift in the Latino community," said Angela Kelley of the Center for American Progress, which opposes the Arizona law. "It will be known to every Latino in this country."

Bob Dane of the Federation for American Immigration Reform, which supports Arizona's law, said a victory for the U.S. would be a tragic endorsement of Obama's "we won't and you can't" immigration policy and fire up supporters of the state efforts.

"That will weigh heavily on voters' minds," Dane said.

Years in the making

Arizona's 2010 immigration law may have caught many by surprise, but the state had been heading in that direction for years.

In 2004, Arizona voters passed Proposition 200, which barred illegal immigrants from receiving public benefits. The state passed an anti-human-smuggling act in 2005 to allow prosecutors to charge border-crossers with state crimes. And in 2007, Arizona passed a law aimed at denying work for illegal immigrants. All three laws were challenged by civil rights groups, but all were upheld by federal courts.

Then came Senate Bill 1070.

The law's stated goal for the roughly 400,000 illegal immigrants living in Arizona is "attrition through enforcement" and aims to "discourage and deter the unlawful entry and presence of aliens." The law expanded the requirements for local and state police to check the immigration status of people, and created new state crimes punishing illegal immigrants.

Immediately following the law's passage, an untold number of illegal immigrants fled the state. Protests sprung up from Phoenix to Chicago.

The state was boycotted by a wide variety of entities, including the National Council of La Raza, the cities of Los Angeles, St. Paul and Boston, musicians including Rage Against the Machine and Kanye West, and even the Highland Park (Ill.) High School women's basketball team, which pulled out of a tournament in Scottsdale.

Activists unsuccessfully tried to get Major League Baseball to move the 2011 All-Star Game from Phoenix. The outcry grew so loud that some called for a boycott of AriZona Iced Tea, prompting the company to issue a statement reminding customers that they were still based in New York.

The Center for American Progress, which opposes Arizona's immigration efforts, estimated that the tourism-dependent state would lose an estimated $388 million over three years as as result of the boycotts and negative publicity the law generated.

The Department of Justice joined a group of civil rights organizations in lawsuits seeking to halt the law from going into effect. At that time, in April 2010, President Obama called the law "misguided" and said the provisions "threaten to undermine basic notions of fairness that we cherish as Americans."

Despite the vocal criticism, the law was viewed favorably by the people most closely affected by it — Arizonans. Sixty-four percent of residents supported the law, according to a Rasmussen poll conducted shortly after the bill was signed into law.

National polls also showed that a majority of Americans supported Arizona's efforts — 55% of Americans approved Arizona's law shortly after it was passed, according to a Quinnipiac University Poll.

On July 28, 2010, the day before the law was set to go into effect, U.S. District Judge Susan Bolton blocked the main portions of the law from going into effect, starting the appeals process that led it to the Supreme Court.

Portions of law enforced

Still, Carlos Garcia, a 29-year-old native of Mexico who lives in Phoenix, said the remaining portions of the law, combined with those passed before it, have created a culture of fear in the state for both legal and illegal immigrants.

Garcia is a U.S. citizen, but he says most of his relatives are illegal immigrants. In the two years since SB 1070 went into effect, four of his relatives have been arrested — two have been deported, two remain in the country.

"There's this perception that everything is OK because 1070 is enjoined," Garcia said. "But people continue to be racially profiled, continue to be detained, continue to be deported."

Phoenix police Sgt. Trent Crump said his agency is definitely enforcing the remaining portions of the law.

For example, Phoenix police used to prevent its officers from investigating the immigration status of crime victims and witnesses. Crump said the department was forced to remove that restriction because another portion of SB 1070 allows citizens to sue government agencies, including police departments, if they are enforcing federal immigration laws "to less than the full extent permitted by federal law."

The penalty is up to $5,000 a day.

"1070 doesn't allow a lot of interpretation," Crump said.

Russell McClurg, a barber in Apache Junction, Ariz., said the law is needed because the federal government had ignored the financial and security burdens thrust upon the state by an open border with Mexico.

"The only ones who seem to be sticking up for Arizonans are the Arizonans," said McClurg, 72. "You'd think the federal government would be more help, but they seem more interested in fighting us."

The clearest image of that battle came when Obama visited Arizona in January and met Brewer on the tarmac, where photographs showed the Republican governor pointing her finger at the president. Brewer later downplayed the scene, but her office has strongly defended the state's economic recovery since the immigration law was passed.

As of February, the state had added 42,6000 new, non-farm jobs over the previous year, and state revenues have increased 8.7% so far in 2012. The Arizona Office of Tourism found the state generated $17.7 billion in direct travel spending in 2010 — a 7.9% increase over the previous year. Brewer said there may have been a negative effect in the immediate aftermath of the law, but that the state has rebounded and the "Arizona comeback" is here.

"Businesses are coming. People are recruiting," Brewer said. "We should get a lot of kudos for what we've accomplished."

Arguments before high court

When the case goes before the Supreme Court, the justices will not be ruling on the entire law, but four provisions that were blocked.

That includes portions requiring police to check the immigration status of people during traffic stops and creating state crimes for illegal immigrants failing to carry proof of immigration or trying to solicit work.

In court filings, Arizona argues that the federal government has failed to adequately secure the border from illegal crossers, and that Arizona is bearing the brunt of that failure. The state says a third of the immigrants illegally crossing into the U.S. did so through Arizona and the "accompanying influx of illegal drugs, dangerous criminals and highly vulnerable persons, have resulted in massive problems for Arizona's citizens and government."

And Arizona argues that it's not going beyond federal immigration laws, but only assisting the feds carry out their laws. Arizona attorneys point out that it's a federal misdemeanor for illegal immigrants to not possess their federal registration cards, and that creating a state law for the same crime is merely an attempt to help federal officials implement that law.

The Department of Justice counters that the federal government has gone to great lengths to crack down on illegal immigration. President Obama, continuing the policies of his predecessors, has continued funding enforcement along the Southwest border, resulting in more than 4,000 Border Patrol agents, 350 Immigration and Customs Enforcement special agents and 40 Department of Homeland Security aircraft in Arizona alone.

And while some of the new Arizona laws may mirror federal laws, Justice attorneys argue that state and local police officers are not properly trained to implement them. Requiring them to understand complex federal immigration policies is unwise, they argue, and errors could lead to foreign relations problems.

"As the Framers understood, it is the National Government that has ultimate responsibility to regulate the treatment of aliens while on American soil, because it is the Nation as a whole — not any single State — that must respond to the international consequences of such treatment," the government's brief reads.

Predicting how the court rules could come down to a question of precedent versus politics, said Erwin Chemerinsky, dean of the University of California-Irvine School of Law.

Chemerinsky said the U.S. should prevail if the justices stick to court precedent. He points to a 1941 case, Hines v. Davidowitz, where the court struck down a Pennsylvania immigration law that bears similarities to Arizona's, including the requirement that immigrants carry federal registration papers. The court ruled that immigration enforcement requires important foreign policy considerations, meaning states could not "conflict" or "complement" federal immigration efforts.

"If I just predicted based on law, SB 1070 should be deemed preempted and it should be a lopsided decision," Chemerinsky said. "But the politics are so intense and the Court is conservative."

Kris Kobach, the secretary of state of Kansas who has helped Arizona and other states craft their anti-illegal immigrant laws, disagrees with that assessment. He points out that Arizona is three-for-three in defending its recent laws in courts, and said that of all the laws, SB 1070 stands on the strongest Constitutional grounds.

He points to a 1976 Supreme Court ruling in De Canas v. Bica, where the justices upheld a California law that created criminal sanctions against state employers who hired illegal immigrants. That precedent was backed up just last year, when the court ruled 5-3 in Chamber of Commerce v. Whiting that Arizona could restrict business licenses for companies that knowingly hired illegal immigrants.

"What the court laid out was a roadmap," Kobach said of the De Canas v. Bica ruling. "If there's no conflict with any federal statue … then the state action is perfectly fine."

A debate over civil rights?

While the justices are expected to rule strictly on the four provisions in the law, many are viewing the case as a barometer of civil rights in America today.

"Despite the fact that this is, on legal terms, about the structure of government and specifically federal supremacy and the relationship between states and the federal government … this is clearly a civil rights case," said Thomas Saenz, president of the Mexican American Legal Defense and Educational Fund, which is one of the groups that sued Arizona.

Arizona officials, including Brewer, have long insisted that SB 1070 is not an attack on Hispanics. The bill's authors have pointed out that the law specifically prohibits officers from engaging in racial profiling.

Brewer said she went to great lengths to ensure that SB 1070 did not violate any civil rights and expressly forbade racial profiling. She said the reaction by some, where she and Arizona legislators have been branded as racists, has led to many sleepless nights.

"I was born in the Southwest. I grew up in the Southwest, and anybody that has lived here knows what diversity is. It's not like all of a sudden we wake up one day and we're bigots," Brewer said. "We go to school with a diverse population, in our churches, they marry into our families. But if you want to shut down debate, what do you do? You throw out the race card."

Kobach considers the Supreme Court case his "final exam." Kobach, as a law professor at the University of Missouri-Kansas City and in his current role as a Kansas state official, has helped states write and implement anti-illegal immigration laws around the country.

Kobach helped Arizona legislators craft the three previous immigration bills that have survived judicial scrutiny. And now he sees the ruling on SB 1070 as the final piece.

If the court rules in Arizona's favor, then it will "vindicate the work I've been doing for many years."

If not?

"Then I'll have to go back to the drawing board," he said.

ABC News Live

ABC News Live

24/7 coverage of breaking news and live events