In April, the United States Supreme Court heard argument in a highly publicized case that likely will be decided later this month – the so-called Arizona immigration law case.
Like the much anticipated ruling in the case, the decision in the Arizona case no doubt will play a significant role in the upcoming presidential campaign.
Critics of the Arizona statute claim that the law encourages so-called "racial profiling," mainly of persons of Hispanic origin. It is important to note at the outset, however, that the matter before the high court does not actually involve a challenge to law on those grounds.
Four provisions of the Arizona law are before the court.
One, that part of the law that requires police to check the immigration status of anyone they have detained lawfully, if and when they have "reasonable suspicion" to believe that person is in the U.S. illegally.
Two, that part of the law that makes it a violation of Arizona law to violate federal alien registration laws.
Three, a provision that makes it a crime under Arizona law for illegal aliens to apply for work or work as independent contractors.
Four, a provision that allows arrests to be made without a warrant when the police have "probable cause" to believe that someone has committed a crime, making them subject to deportation.
One of the problems evaluating a case of this complexity is that there are a number of issues only a lawyer could love.
For instance, the case is likely to turn not so much on whether its provisions impact rights of persons in the U.S., but whether Congress will be deemed to have "preempted" states like Arizona from passing their own immigration laws.
The doctrine of preemption, simply put, holds that when the United States Congress passes a law that it intends to be the law of the land, states may
not enact laws that conflict with it.
In its brief opposing the law, the U.S. government argued that "as the Framers understood, it is the National Government that has ultimate responsibility to regulate the treatment of aliens while on American soil, because it is the Nation as a whole — not any single State — that must respond to the international consequences of such treatment."
Erwin Chemerinsky, dean of the University of California-Irvine School of Law, agrees.
In a recent USA Today article, the dean claims that prior Supreme Court cases establish that states may not "conflict or complement" federal immigration efforts.
Supporters of the law contend that federal immigration laws enacted by
Congress do not preempt state efforts to address immigration.
Writing in the Washington Post, Kirk Adams, the speaker of the Arizona House of Representatives, encourages people to actually read the bill. "I hope the president, the attorney general and other concerned Americans read Arizona's legislation. If they do, they would learn that, as signed, [the law] mirrors federal law by making it a state crime to be in this country illegally, as has been the case in federal statute for decades."
At oral argument, most experts agree, things did not go well for the government. Even Justice Sonia Sotomayer, a Democrat, expressed doubts about the government’s argument that Arizona is not free to enact laws that seek to enforce federal laws already on the books.
But as we've pointed out in this space previously, Supreme Court justices
do not always tip their hands through their questions to attorneys.
Sometimes, the questions are intended to help the attorneys get back on point, or give the attorney the chance to make an argument that the justice feels it would be helpful for his or her colleagues to hear. Other times, justices are just playing "devil's advocate."
However the Arizona case is decided, it likely will become a hot button
issue in the campaign.
According to a Fox news poll, nearly two-thirds of Americans (even 50 percent of Democrats) believe states should be permitted to enact their own laws to
curb illegal immigration.
Mitt Romney, the presumptive Republican nominee, will contend that the
president is "soft" on illegal immigration and unresponsive to the needs to states, particularly in the south, that purport to have the most serious problems will undocumented aliens.
The president, on the other hand, likely will accuse Romney of advocating state law enforcement practices that disproportionately impact Hispanic-Americans, a group that supported the president by a wide margin in 2008.