Arizona’s Anti-Illegal Immigration Law Heads for Supreme Court

By Chad Burchard | December 14, 2011

On Monday, the U.S. Supreme Court announced that it would hear arguments over the constitutionality of Arizona’s S.B. 1070, a law aimed at cracking down on illegal immigration. Among other things, the law requires police (pursuant to a lawful stop) to verify the immigration status of persons they have reasonable suspicion to believe are in the country illegally.

The law’s passage in May of last year sparked considerable controversy, as critics argued it would lead to racial profiling. The Justice Department filed suit, arguing that the law was preempted by federal immigration law. A federal judge enjoined enforcement of several provisions of the law (including the verification requirement) and early this year, a three judge panel of the Ninth Circuit Court of Appeals ruled 2-1 to uphold the lower court’s injunction. The Supreme Court will now hear Arizona’s appeal of that decision.

However, the Court will do so without its newest member, Justice Elena Kagan, who has recused herself from the case. Kagan served as President Obama’s solicitor general when the Justice Department sued Arizona last year. Federal law requires recusal if, during a previous federal job, a justice served as “counsel, adviser, or material witness concerning the proceeding or has expressed an opinion concerning the merits of the particular case in controversy.”

So far though, there is no sign that Justice Kagan will recuse herself from involvement in deciding the constitutionality of the new health care law, the Patient Protection and Affordable Care Act, despite calls from some for her to do so. [Eric Segall, A Liberal’s Lament on Kagan and Healthcare: Should Elena Kagan Recuse Herself in the ACA Case? Slate, December 8, 2011]

Kagan’s absence opens up the possibility of a 4-4 split, which would uphold the Ninth Circuit’s ruling but not establish any precedent binding on other courts. Thus, a tie would leave unsettled the issue of similar immigration legislation passed in Alabama, Georgia, and South Carolina. Like Arizona, these states have passed laws authorizing police to verify a detained person’s immigration status.

Alabama’s law also requires schools to check their students’ immigration status as well. Back in October, the Eleventh Circuit Court of Appeals upheld a lower court ruling blocking enforcement of this aspect of the law, but most of the other provisions (including the verification requirement) remain in effect.

The Court’s decision to hear Arizona’s appeal means that it will rule on two of the most controversial laws passed in recent years—S.B. 1070 and the Affordable Care Act—during the middle of the presidential election next year.