The Court, the Constitution and the 2012 campaign: Act III

In the final round of hearings in a Supreme Court term that has seemed closely linked to the 2012 election campaign, the Supreme Court turns its attention this week to the emotional subject of immigration controls. At issue is the constitutionality of a 2010 Arizona law so widely known that its very title–“S.B. 1070”–seems enough to start a political argument.

The Justices, after examining how the parties may fare in redistricting Congress and state legislatures, and whether Congress exceeded its powers in passing the new health care law, will close out their hearing calendar on Wednesday with a third politically volatile event: an hour-long review of states’ power to regulate the lives of undocumented immigrants.

Although the timing is a coincidence, the hearing would seem to be a judicial echo of the political dispute between likely Republican presidential nominee Mitt Romney, who has described the Arizona law as a model for other states, and President Obama, who has sent his legal team on a mission to scuttle S.B. 1070’s main provisions.

The Justices, of course, will do what they can to put political notions aside as they explore the division of power over immigration between national and state governments. But with a final decision in the Arizona case likely to emerge by late June, the outcome cannot avoid becoming a focus of campaign debate.

Moreover, that decision may well have an impact on other new laws that were passed in the wake of Arizona’s: in Alabama, Georgia, Indiana, South Carolina and Utah.

For the Court, this is not a new issue. Thirty years ago, a Supreme Court Justice wrote in a Texas case: “Perhaps because of the intractability of the problem, Congress–vested by the Constitution with the responsibility of protecting our borders and legislating with respect to aliens–has not provided effective leadership in dealing with this problem.”

Even so, the Court back then was unwilling to let a border state deal with the problem by, for example, barring the children of undocumented immigrants from attending public schools.

The question now recurs before the Court: with Congress still unwilling (or unable politically) to legislate in a comprehensive way on the fate of perhaps 12 million non-citizens living illegally in the U.S., are the states free to step in to impose significant restrictions on their social and economic opportunities?

The sponsors of Arizona’s S.B. 1070 and similar measures candidly admit that such measures are designed to be sufficiently onerous as to lead millions of those individuals and families to leave altogether, preferably to return to their home countries rather than moving to other states.

And, because of that very objective in the law, the federal government has challenged it on the theory that Arizona is trying to have its own policy on deportation, and that is something that the Constitution treats as a matter for the federal government–alone, or in cooperation that it invites from the states.

As the fight over S.B. 1070 reaches the Justices, it is a test of whether Arizona can begin enforcing four provisions that currently are on hold under lower court orders. Two of the sections create new crimes for undocumented immigrants: for failure to have legal immigration papers while in Arizona, and for applying for or holding a job. The other two require police to check up on legal status, or arrest without a warrant, an individual who is suspected of not having a legal right to be in the U.S.

The federal government has challenged those four sections on the theory that they rely upon a regime of strict law enforcement that conflicts with the way federal officials have set priorities in enforcement of immigration laws.

Thus, the central focus of Wednesday’s hearing appears likely to be on the question of whether the federal approach and Arizona’s approach can co-exist. Lurking in the case, though not centrally at issue at this stage, is whether the Arizona approach amounts to a form of “racial profiling” that will reach not just undocumented immigrants, but Hispanics and other persons of color who actually have a legal right to be in the country–including citizens and legal permanent residents.

The argument this week provides a return engagement between the two leading advocates who faced off last month when the Court reviewed the constitutionality of the new health care law: U.S. Solicitor General Donald B. Verrilli, Jr.–the government’s top advocate before the Court–and Washington attorney Paul C. Clement, a former Solicitor General who is now considered one of the most talented private advocates before the Court.

Once Wednesday’s hour is over, the Court will meet in private on Friday to cast its first, preliminary vote on the Arizona law, and begin probably weeks of deliberation.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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