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Liberal, conservative justices skeptical that Arizona's immigration law exceeded state authority, but their questions indicate part of the law might be thrown out.

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Justices cool to overturning Arizona’s immigration law

Liberal, conservative justices skeptical that Arizona’s immigration law exceeded state authority, but their questions indicate part of the law might be thrown out.

Another power grab by President Obama looks to be coming up short in the U.S. Supreme Court. The court Wednesday heard oral arguments in the attempt by the Obama Justice Department to overturn Arizona’s SB 1070.

In the law’s language, it requires that, “for any lawful contact” between a “law enforcement or agency” of the state, if someone is suspected of being an “unlawful alien,” then an attempt shall be made to determine the person’s immigration status. If infringements of the immigration law are suspected, then the person is turned over to federal immigration authorities.

At the time she signed the bill, Arizona Gov. Jan Brewer insisted, “We must enforce the law evenly, and without regard to skin color, accent or social status.” 

Police have been given extra training on implementing the law in an unbiased way, though there were fears that suspected illegal immigrants would be stopped on a pretext of a minor infraction, only to find themselves in the deportation queue.

Before the court, Solicitor General Donald B. Verrilli Jr. argued that the federal government possesses “exclusive” power over immigration. But Chief Justice John Roberts pointed out of the Arizona law, “It doesn’t require you to remove one more alien.”

Even the liberal justices were skeptical. Justice Sondra Sotomayor told Verrilli that his argument “is not selling very well.”

Headed in right direction

“The court is headed in the right direction,” John Eastman told me; he’s a law professor at Chapman University School of Law and founding director of the school’s Center for Constitutional Jurisprudence. “I’ve been optimistic.”

He said that the Justice Department is claiming that federal immigration laws trump all state and local laws under what’s called “implied field sovereignty. But the court has been increasingly suspect of implied pre-emption complaints.”

He pointed to a case decided a year ago, Chamber of Commerce vs. Whiting. In that case involving another Arizona law, in a 5-3 decision the court wrote that federal law “does not prevent Arizona from revoking the business licenses of state companies that knowingly hire undocumented workers, or from requiring employers in the state to use a federal electronic system to check that their workers are authorized to work in the United States.” The states, Eastman said, still have licensing powers.

In the SB 1070 case arguments, Eastman observed, “It sounds like the court was exactly focused on that issue. It’s been longstanding that Congress has plenary power to set immigration policies. But that doesn’t mean the states can’t work within those laws.”

He said that another pertinent case is De Canas vs. Bica from 1976. In the law’s language, hiring an illegal immigrant was banned by the state of California “if such employment would have an adverse effect on lawful resident worker.” The Supreme Court upheld the law unanimously.

Eastman said that the justices’ questions also indicate that one part of SB 1070 might be thrown out, the part punishing illegal immigrants for seeking work. The distinction is that federal law has taken aim at employers who violate immigration laws, but not employees, who only can be deported.

Will Obama lose two key decisions?

Before the Supreme Court takes its summer recess, it now looks as though the Obama Justice Department well could lose before the court on SB 1070 and on the legality of the Obamacare coverage mandate. Those would be two heavy blows as the president revs up his re-election campaign for the November election.

Arizona is a battleground state the president won by less than 200,000 votes in 2008. Losing before the court on SB 1070 could presage a loss of Arizona, and the nation, in November.

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