Arizona's Immigration Law Gets its Day in Court

Written by Howard Foster on Monday December 12, 2011

Today the Supreme Court announced that it has granted the State of Arizona’s petition to review the Ninth Circuit Appellate decision striking down most of S.B. 1070, the controversial state law prohibiting the employment of illegal immigrants and making it a crime for immigrants not to carry evidence of lawful admission to the country.

The law was signed by Gov. Jan Brewer last year. However, at the request of the Obama Justice Department, a federal judge in Phoenix promptly enjoined the State from enforcing it, and the Ninth Circuit Court of Appeals, considered the most liberal of the federal appellate Circuits, agreed most of the law was unconstitutional on the theory Congress preempted the entire field of enforcing immigration violations leaving the states powerless to act.

The Supreme Court will now decide if the Ninth Circuit was correct without Justice Kagan, who recused herself from the case because of her involvement with it as Solicitor General before joining the Court. Her absence means if there is a 4-4 split, the Ninth Circuit’s decision would be affirmed but without a precedent which would bind other courts. However, in June the Court voted 5-4 to uphold another Arizona law requiring employers to use the federal government’s E-Verify program, to check the employment authorization of all new hires. That decision rejected the “preemption” argument. If that 5 vote majority holds, the Arizona law would be upheld, and the decision would bind other federal courts grappling with similar immigration laws enacted in Alabama, South Carolina, Utah, and Georgia and one municipality in Nebraska.

This will likely be the second most watched case of the Supreme Court’s term, after the challenge to the Obama health care law.