This column by ACRU Senior Legal Analyst Ken Klukowski was published April 26, 2012 on Breitbart.com.

“What does sovereignty mean if it does not include the ability to defend your borders?” That question by Justice Antonin Scalia goes to the heart of the Supreme Court’s blockbuster immigration case, Arizona v. United States. (Download a PDF of the amicus brief the ACRU filed in the case here). The end result will likely be a split decision that will disappoint some and be spun as a victory by others.

On April 25, the justices heard arguments in the challenge to Arizona’s controversial law, S.B. 1070. But the case is not what many in the media are reporting.

First, this is not a constitutional challenge. No one is saying that Arizona’s law is unconstitutional.

Second, this is not an immigration case. Although the public policy issue is immigration, that’s not the legal issue before the Court. Congress has exclusive power over immigration. But as the Court has held repeatedly, immigration only concerns who can cross America’s national borders, and the length and conditions of their stay. S.B. 1070 does not pretend to deport anyone. The Court has also held that states can have jurisdiction to enforce federal laws, so long as they mirror federal requirements and do not frustrate Congress’s designs.

So the legal issue in this case is preemption. Under the Supremacy Clause of the Constitution, whenever federal and state laws conflict, federal law wins. Congress has passed two major immigration-related laws in the past twenty-five years. The issue is whether Arizona’s state statute conflicts with those two federal statutes. It is a complicated area of law.

Responding to the serious impact that illegal aliens have on state spending and public safety in Arizona, Governor Jan Brewer signed S.B. 1070, a bill by the Arizona legislature to reinforce federal efforts to tackle this complex problem. The Obama administration challenged the law as being entirely preempted by federal law, taking the unusual step of suing before the law went into effect.

The case went to a federal district court in Arizona and the Ninth Circuit federal appeals court, in which the courts held four provisions (but only four) of S.B. 1070 are preempted. These provisions include:

1. a requirement that Arizona police ask the federal government during lawful arrests whether the detained person is an illegal alien;
2. a provision that makes it a state crime to violate the federal requirement for foreigners to carry documentation at all times showing they are allowed in this country;
3. a provision that makes it a crime for an illegal alien to seek a job in Arizona; and
4. a provision allowing police to arrest a foreigner without a warrant for committing a crime that could cause their deportation.

A general rule of law is that because states are sovereign, there is a presumption Congress does not intend to preempt state law unless Congress clearly expresses its intent to do so. Representing Arizona, former U.S. Solicitor General Paul Clement began, “A state does not need to point to federal authorization for its enforcement efforts. Rather, the burden is on the parties seeking to preempt a duly-enacted state law to point to some provision in statutory law that does the preempting.” Most of the argument focused on whether such intent is implicit in recent immigration laws.

Justice Anthony Kennedy asked if police, when checking someone’s legal status, could keep someone locked up for weeks, and if so whether such treatment would violate the Fourth Amendment. Clement responded that the average check takes only ten minutes, and that President Barack Obama’s lawyers didn’t make any claims that the law is unconstitutional, so those issues must wait for another day.

Things did not go as well for the provision making it a crime for illegals to seek work (#3 above). Chief Justice John Roberts cautioned, “That does seem to expand beyond the federal government’s determination about the types of sanctions that should govern the employment relationship.”

Taking the lectern after Clement, U.S. Solicitor General Donald Verrilli began, “The Framers vested in the national government the authority over immigration because they understood that the way this nation treats citizens of other countries is a vital aspect of our foreign relations.”

When Verrilli added that Arizona was forcing the federal government to expend resources in ways it didn’t want to, Justice Antonin Scalia pushed back, “But it’s still up to the national government. Arizona is not trying to kick out anybody that the federal government has not already said do not belong here.”

Chief Justice John Roberts likewise indicated that he saw no problem with the section about verifying immigration status. According to the Chief, Arizona is saying, “Here are people who are here in violation of federal law, you make the decision. And if your decision is you don’t want to prosecute those people, fine, that’s entirely up to you. That’s why I don’t see the problem with [that section of S.B. 1070].

Roberts also noted that Congress created a federal hotline for state and local police to check immigration status. “It seems an odd argument to say the federal agency has to answer the state’s question, but the state can’t ask it.”

The Obama administration made an implausible argument that sporadic or occasional cooperation between federal and state officials on these immigration issues was acceptable, but that state efforts were preempted if they were so regular that they became systematic. So Verrilli argued that the Arizona legislature could not pass S.B. 1070, but that it would be fine if individual police officers acted on their own.

Justice Samuel Alito pushed back, “That’s what I can’t understand because your argument–you seem to be saying that what’s wrong with the Arizona law is that the Arizona legislature is trying to control what its employees are doing, and they have to be free to disregard the desires of the Arizona legislature, for whom they work, and follow the priorities of the federal government, for whom they don’t work.”

Verrilli’s efforts to untangle this knot left Justice Sonia Sotomayor, who seemed sympathetic to most of the feds’ argument, to say, “I’m sorry…I’m terribly confused by your answer.”

Scalia came back at Verrilli. “Are you objecting to harassing the people who have no business being here? Surely you’re not concerned about harassing them. They have been stopped anyway, and all you’re doing is calling up to see if they are illegal immigrants or not.”

When Verrilli argued that these phone calls divert federal resources to deal with certain illegal immigrants, Roberts responded, “Look, when somebody from Arizona calls, answer their question, and don’t even bother to write it down. Okay? I stopped somebody else, is he legal or illegal? Let me check. Oh, he’s illegal. Okay, thanks. Good-bye.”

Scalia then went after another part of Verrilli’s argument, asking, “What’s wrong about the states enforcing federal law? There is a federal law against robbing federal banks. Can it be made a state crime to rob those banks? I think it is.”

A couple liberal justices seemed skeptical as well. Justice Stephen Breyer suggested he did not buy Verrilli’s argument on this part of S.B. 1070, and Sotomayor added, “Putting aside your argument that systematic cooperation is wrong–you can see it’s not selling very well–why don’t you try to come up with something else?”

Verrilli insisted that the federal government must be free to allocate its resources according to its own priorities. Scalia responded that Ar
izona essentially says, “That may be your priorities, but most of these people that you’re not going after…are here in our state, and we don’t like it. They are causing all sorts of problems. So we’re going to help you enforce federal law.”

Verrilli countered that how we treat foreigners impacts diplomacy, so Obama’s administration must be free to decide when not to deport illegal aliens. That led Kennedy to ask incredulously, “So you’re saying the [federal] government has a legitimate interest in not enforcing its laws?” Scalia jumped on, adding, “So we have to enforce our laws in a manner that will please Mexico?”

In this end, it’s possible Arizona will prevail on the sections of S.B. 1070 concerning confirming a person’s legal status and warrantless arrest for committing a deportable crime, but the Court might hold current federal law preempts the provisions about making it an Arizona crime to fail to carry documents or attempt to get a job. Such a split decision would likely leave many uncertain who won, and politicians on both sides would claim victory.

A decision is expected at the end of June. And this issue will likely be a major issue on Election Day.