December 13, 2011 — The U.S. Supreme Court on Monday agreed to rule on the federal government's challenge to Arizona's tough anti-illegal immigration law. David Martin, a University of Virginia law professor and one of the nation's leading experts in immigration law, said the case's outcome is difficult to predict, but he believes the federal government has a relatively strong case.
"This is a tough one to call, especially with Justice [Elena] Kagan apparently recused from considering the case," Martin said. "But I would think there's a good chance the court will rule generally in favor of the federal government."
Martin served as deputy general counsel for the Department of Homeland Security from 2009 to January 2011 and as general counsel for the Immigration and Naturalization Service from 1995 to 1998. As counsel at the Department of Homeland Security, Martin was part of the legal team that worked on the first stages of the Arizona suit.
The Arizona law's highest-profile provision requires state law enforcement officers to ask about the immigration status of anyone they stop or arrest if they have a reasonable suspicion that the person is present unlawfully in the United States. That provision, Martin said, was struck down by the 9th U.S. Circuit Court of Appeals, but the 11th Circuit Court of Appeals refused a preliminary injunction against a similar provision in a recent Alabama law.
"This is the provision that attracted the most attention when the Arizona law was enacted in spring 2010," Martin said. "But it is perhaps the area where the arguments are trickiest for the federal government, because the feds don't want too sweeping a ruling that would undermine desirable cooperation with the states in dealing with unauthorized aliens who commit crimes. What they want is cooperation on federal government terms, not on terms dictated by the various states. Harmonious national policies are important, especially in an area with real foreign-policy impact."
Both appeals courts struck down provisions that made it a state crime for immigrants to fail to register with the federal government or to carry the registration documents at all times – essentially making it a crime to be in the United States without lawful status.
"That's probably the most vulnerable provision," Martin said.
Both appeals courts also blocked provisions that essentially penalize immigrants if they work in the country illegally. The courts said the provisions conflict with federal law, which focuses penalties on employers when there is unlawful employment.
The Supreme Court sustained a different Arizona immigration law last year in Chamber of Commerce of the United States v. Whiting. In that case, the court upheld a 2007 statute that said employers who did not participate in the federal government's voluntary computer verification system, known as E-Verify, or otherwise hired illegal immigrants, could lose their business license.
Martin, however, does not think the court's decision in the Whiting case sends a clear signal about this latest case challenging the more restrictive 2010 Arizona statute.
"A lot of commentary over the summer read the Whiting ruling as a signal that the Supreme Court would probably sustain these other restrictive state laws," Martin said. "I don't think that's the case at all. It's very much an open question. The Whiting case turned on a specific section of federal law that exempted a small set of state laws from an express preemption provision. It was also a state statute that tracked pretty closely with what federal law empowers or encourages. Arizona just made employer participation mandatory."
Martin said he was not surprised the justices decided to take up Arizona's immigration law, as many states have started to follow Arizona's example.
"There's not quite a clear conflict in the circuits yet," he said, "but several state laws were enacted over the last year that follow many of the same patterns as Arizona. So the issue's been alive in several different circuits."
The court's ruling, he said, is likely to have far-reaching implications. It will provide guidance for the pending court proceedings and also affect how state legislatures will proceed.
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REPORTERS: David Martin, Warner-Booker Distinguished Professor
of International Law, can be reached at firstname.lastname@example.org or 434-924-3144.