Supreme Court considers controversial immigration law

Marty Dolan, principal at Dolan Law, and his associate Karen Munoz represent victims of wrongful death and personal injury. His column “Law and Wellness” appears in the Chicago Lawyer and her column appears regularly in the Law Bulletin. This week’s blog is written by Karen Munoz.

Recently, the Supreme Court heard oral arguments on Arizona’s controversial immigration law, the Support Our Law Enforcement and Safe Neighborhoods Act (or SB 1070). The hearing drew demonstrators who protested against the perceived discriminatory measures of the act outside the courthouse campaigning. It was a highly charged event.  While many recent Supreme Court opinions of great significance appear to have been decided on political and ideological lines, this ruling is likely to be another political event, although it may not be of much legal significance.

The four provisions of SB 1070 being debated before the court were those requiring law officers to determine the immigration status of people reasonably suspected to be aliens during any lawful stop; the requirement to carry alien registration documents; the prohibition on applying for work if unauthorized; and the permission for warrantless arrests if there is probable cause the offense would make the person is removable from the United States.

After the law’s enactment, a federal court granted an injunction, at the request of the Department of Justice, blocking those four provisions of SB 1070 and its decision was upheld by the 9th U.S. Circuit Court of Appeals. And, while much of the controversy surrounding the law is on the potential for racial profiling by law enforcement, Chief Justice John Roberts expressly stated that the court would not be considering those issues. Rather, he explained, the questions on which the court would deliberate were ones concerning federal power and preemption.

Specifically, the court must consider whether the law is an impermissible intrusion on Congress’s power to set immigration policy or the executive’s ability to implement it, or legitimate support in furtherance of the federal government’s policy.

The decision is potentially very politically significant. Given that the decision will likely be handed down in the summer before the election, along with the court’s decision on Obamacare, the president’s political opponents might be given valuable ammunition to use against him should the federal government lose both cases. Since both cases involve to some extent the extent of the power of the federal government, it is easy to imagine President Barack Obama being accused of impermissibly attempting to expand the powers of the federal government.

However, it may be that the court’s holding will have more of an impact on politics than on immigration law. This is because, if it is upheld immigration groups are likely to challenge SB 1070 on the basis that it discriminates on the basis of race. Indeed, when considered from that perspective, there is certainly a legitimate issue regarding racial factors that might be used by an officer to support a finding of reasonable suspicion that a person is an illegal alien. Only after the issues relating to race are answered will we have a clear picture of the legality of the act as a whole.


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