Legal experts see Supreme Court upholding core of SB1070

Legal experts are predicting a mixed ruling by the U.S. Supreme Court on SB1070, which could leave the bill’s core provisions in place while sending others to the scrap heap.

Most observers expect the high court to uphold the provision in the illegal immigration law requiring police officers to check people’s immigration status if there’s a “reasonable suspicion” that they’re in the country illegally.

But sections effectively making it a state crime to be in the country illegally and making it illegal for an undocumented immigrant to seek work are up in the air following the April 25 Supreme Court hearing that attracted news media from across the country.

Some of the more conservative members of the court expressed concerns with those two sections of the law. A fourth section, one allowing police to make warrantless arrests if they have probable cause to believe someone has committed a crime that makes them removable from the United States, garnered less attention from the justices, but elicited concerns as well.

Few observers have any expectation that Section 2 — the heart of the bill, which requires police to check immigration status — will be struck down. Even liberal justices such as Stephen Breyer and Sonia Sotomayor — who told U.S. Solicitor General Donald Verrilli that his position “is not selling” — seemed receptive to the provision and to Arizona’s arguments presented by attorney Paul Clement.

But conservative justices, including Chief Justice John Roberts, Anthony Kennedy and Samuel Alito expressed doubts about Section 3, which makes it a state crime for someone to be in the country illegally, and Section 5, which makes it a state crime for an illegal immigrant to work or seek employment in Arizona.

Amy Howe, an attorney with the Washington, D.C. law firm Goldstein & Russell who has argued cases before the Supreme Court, said questions from conservative justices about the possibility that some immigrants, such as those who have pending asylum applications, could run afoul of Section 3, even though they have permission to be in the country, may indicate problems for the provision.

“The federal government would not prosecute that person, but that person could still be charged with a crime in Arizona,” said Howe, who writes for the website SCOTUSblog. “That still could be upheld, as well, but it seemed it was certainly the most likely of the four provisions to fall, based on what was said at the oral arguments.”

At least one vote from the five conservative justices will likely be needed to join liberals to strike down any provision of SB1070. Justice Elena Kagan recused herself from the case due to her prior work as President Barack Obama’s solicitor general, but a 4-4 vote would uphold the 9th Circuit’s ruling against the bill.

Arizona State University law professor Paul Bender said it was telling that, in defending Section 2, Clement acknowledged that local police officers would be unable to detain illegal immigrants unless they were suspected of committing a state crime.

“He says, as clearly as he could, that if the federal government says we don’t want to detain him, the state must let the person go. The state has no independent authority to detain somebody on the grounds that they’re illegal because of this provision. All this provision does is let the state ask,” Bender said.

Some conservative justices also expressed concerns about Section 5. Roberts noted that the provision creates greater penalties for illegal immigrants who seek work than federal law does.

“That does seem to expand beyond the federal government’s determination about the types of sanctions that should govern the employment relationship,” Roberts said to Clement.

A ruling that upholds the provision to allow police to check immigration status but strikes down the state crime provision and the prohibition on illegal immigrants seeking work could take some of the teeth out of SB1070 if federal immigration authorities make a practice of refusing to take custody of illegal immigrants.

U.S. Immigration and Customs Enforcement in 2009 adopted a policy of focusing primarily on illegal immigrants who have committed serious crimes, and informed Maricopa County Sheriff Joe Arpaio at the time that it would not take custody of low-priority people his office detained.

Pratheepan Gulasekaram, a law professor at Santa Clara University, said that may undermine Arizona’s argument that SB1070 doesn’t preempt federal law because it only enforces statutes that are already on the books.

“Federal law penalizes only employers … but it expressly does not penalize the employees themselves,” Gulasekaram said. “It’s not really plausible to make the claim here that all the state is doing is helping enforce federal law.”

Of the four provisions in SB1070 that U.S. District Court Judge Susan Bolton enjoined in 2010, Section 6, which allows police to arrest people without a warrant if there’s probably cause to believe they’ve committed a crime that makes them removable from the country, garnered the least attention from the Supreme Court.

Opinions were mixed, however, on whether that was a good or bad sign for Arizona.

“I’m not sure that there was enough to really gauge where they’re going on that. I think the fact that nobody asked about it suggests that even the more liberal justices, they might be willing to go along with that provision,” Howe said.

Bender said the court may uphold that provision simply due to a reluctance to overturn laws on arguments that they are inherently unconstitutional, which is known as a facial challenge.

“The major thing that’s going on here is this is a facial attack, and the court doesn’t like facial attacks,” Bender said.

But Gulasekaram said the complexity of federal immigration laws and the difficulty that even immigration courts have in determining whether a crime makes an immigrant removable may be a bad omen for the provision.

“It’s the type of thing we leave to immigration judges to make those sorts of complex decisions, so it’s not clear how local law enforcement officers are suddenly going to be able to know how to make these complex decisions,” he said. “Federal law has no particular list of crimes that you can easily look at and compare.”

There was little dispute that the high court seemed likely to uphold Section 2. Most of the justices seemed receptive to Clement’s arguments, and Bender predicted a near-unanimous ruling upholding that section, which is widely regarded as the heart and soul of SB1070.

While some justices, including conservatives Kennedy and Roberts, had concerns about how long a person could be detained while a police officer verified his immigration status, liberals like Sotomayor appeared to agree with Clement’s argument that Section 2 is not preempted by federal law because police officers are already allowed to check immigration status.

“The big stumbling block for the United States seems to be that officers … can ask for that information on their own,” said Carissa Hessick, a law professor at Arizona State University.

If that provision is upheld but others aren’t, most supporters of SB1070 say it will still be a victory for Arizona.

“Section 2 is the most important part of the law,” said Arizona Attorney General Tom Horne.

Opponents of SB1070 also say Section 2, which some refer to as the “show-me-your-papers law,” is the heart and soul of the bill. Many say they’ll view it as a defeat if the court upholds it. Congressman Raul Grijalva, D-Tucson, a vocal opponent of the bill, said that provision is the core of SB1070.

“The heart of it is check-your-papers-please. If that remains at the core, if that is upheld and other parts are struck, it will mitigate some issues. But essentially, stopping people on reasonable suspicion will be part and parcel of the law,” Grijalva said.