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Challenges ahead for Supreme Court-whittled immigration law

Gov. Jan Brewer speaks to reporters outside the Supreme Court in Washington on April 25 after the court's hearing on Arizona's immigration law, SB1070. (AP File Photo/Charles Dharapak)

The U.S. Supreme Court’s ruling striking down three of four challenged provisions of Arizona’s controversial immigration enforcement law – and essentially inviting future challenges to the remaining part of the statute – has lawyers prepared for a flurry of litigation in Arizona and other states with similar measures.

“I think the impact is going to be huge,” said immigration attorney David W. Leopold, principal of David Wolfe Leopold & Associates in Cleveland and former president of the American Immigration Lawyers Association.

In the 5-3 ruling Monday in Arizona v. U.S., the Court struck down three provisions of  SB1070 as preempted by the federal immigration enforcement scheme:

• The measure making it a state-law misdemeanor to violate federal registration laws by willfully failing to complete or carry an alien registration document;

• The portion making it a crime for undocumented workers to seek or hold employment; and

• The part of the law authorizing the warrantless arrest of persons suspected of committing removable offenses when there is probable cause.

However, the Court upheld the portion of the law that directs state police to check the immigration status of individuals reasonably suspected of being in the country illegally, holding that the measure should not have been enjoined before state courts had an opportunity to interpret it.

The ruling has parties on both sides of the case declaring victory.

“A patchwork of state laws is not a solution to our broken immigration system – it’s part of the problem,” President Barack Obama said in a statement.

But Arizona Gov. Jan Brewer called the opinion “a victory for the rule of law.”

“After more than two years of legal challenges, the heart of SB1070 can now be implemented in accordance with the U.S. Constitution,” Brewer said in a statement, adding that the state police could begin enforcing the so-called “show me your papers” provision of the law immediately.

Invitation to challenge status checks

Though the Court upheld the law’s status-check provision, that measure is not immune from future judicial scrutiny. The opinion essentially invited as-applied challenges to that policy once it is enforced and state courts have a chance to interpret it.

“This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect,” Justice Anthony M. Kennedy wrote for the majority.

The immediate enforcement of the provision could mean such challenges might soon start making their way through the courts.

“Essentially what the opinion says is: ‘Hey, we don’t have enough facts in front of us. The state courts have not interpreted it. There is not a specific set of facts we can look at,’” Leopold said.

Supporters of the law said they expect that similar measures in other states will survive any facial challenges, although they do anticipate as-applied challenges.

“The fact that the Court was unanimous in upholding (the status-check provision), I think, is a strong indication that sort of thing is perfectly fine,” said Paul J. Orfanedes, head of the litigation department of the Washington-based conservative government watchdog group Judicial Watch and author of an amicus brief in the case on behalf of state legislators. However, “I think as-applied challenges are very different and dependent on individual circumstances. Like anything else, that authority can be abused.”

Opponents of the law say as-applied challenges will be inevitable because it’s highly likely that enforcement of the status-check provision will result in individuals being targeted based on race.

“It is impossible to imagine a practical way in which you can enforce the provision of the law that was upheld by the Supreme Court without racially profiling,” said Sheena Wadhawan, staff attorney for the immigrant advocate group Casa de Maryland, based in Hyattsville, Md.

In a statement, Attorney General Eric H. Holder, Jr. also expressed concerns about profiling, and said federal officials will be keeping a close eye on how the law is administered.

“As the Court itself recognized, [the law] is not a license to engage in racial profiling,” Holder said. “We will closely monitor the impact of SB 1070 to ensure compliance with federal immigration law and with applicable civil rights laws, including ensuring that law enforcement agencies and others do not implement the law in a manner that has the purpose or effect of discriminating against the Latino or any other community.”

But Brewer brushed aside profiling concerns.

“The case for SB1070 has always been about our support for the rule of law,” Brewer said in her statement. “That means every law, including those against both illegal immigration and racial profiling. Law enforcement will be held accountable should this statute be misused in a fashion that violates an individual’s civil rights.”

Measures similar to Arizona’s law have been introduced in 36 states, and signed into law in five: Alabama, Georgia, Indiana, South Carolina and Utah. Challenges in those states are expected to move forward swiftly, and lawmakers will have to work to immediately amend existing or proposed laws that include measures like those struck down by the Court.

Implications on employment and business 

Ultimately, the reach of the law could be felt far beyond the criminal context, including in the employment law arena.

In striking down the provision criminalizing illegal workers’ efforts to obtain jobs, the Court asserted that the federal immigration law scheme, which focuses on penalizing employers for hiring illegal aliens, trumps state-law efforts to shift that penalty to workers.

“What the Supreme Court said is that the federal law is a comprehensive regulation of the employment relationship,” and a state can’t change that balance by adding criminal sanctions for employees, said Patricia Ann Millett, head of the Supreme Court practice in the Washington office of Akin Gump Strauss Hauer & Feld, speaking at a Court review hosted by the Washington Legal Foundation.

Millett noted that the approach seems at odds with the Court’s ruling last term in Chamber of Commerce v. Whiting, where the Court upheld another Arizona statute that requires employers to verify the immigration status of their workers or face severe penalties. But in that case the Court ruled that the law was not preempted because the federal immigration statute contained an express exemption allowing states to adopt “licensing and similar laws.”

“What you have in Whiting and you don’t have here was an express textual provision by Congress which made an exception allowing states to regulate, under licensing schemes, employees in that context,” Millett said. “[The justices] didn’t spend a lot of time explaining the departure from Whiting in this opinion, but I think that is probably the landing point for the Court on that.”

Questions or comments can be directed to the writer at: kimberly.atkins@lawyersusaonline.com. Lawyers USA is published by the Dolan Company, which also publishes the Arizona Capitol Times.

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