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U.S. Supreme Court justices spanning the ideological divide signaled they were prepared to uphold the core of Arizona’s trailblazing crackdown on illegal immigrants in what would be a blow to President Barack Obama.
Both Republican and Democratic appointees, hearing arguments today in Washington in a case with ramifications for this year’s elections and for laws across the country, aimed skeptical questions at U.S. Solicitor General Donald Verrilli as he argued that the measure would lead to the harassment of U.S. citizens and legal residents.
“You can see it’s not selling very well,” Justice Sonia Sotomayor, the first Hispanic named to the high court, told Verrilli half way through his presentation.
Like the health-care case argued last month, the immigration dispute pits the Obama administration against Republican-controlled states over the federal-state balance of power. The court’s decision, likely to come in June, may affect laws enacted during the past two years in Alabama, South Carolina, Georgia, Utah and Indiana.
Both cases have placed the court in the middle of a campaign. Mitt Romney, who along with Obama is vying for Hispanic votes, has taken a tough stance on illegal immigration in his bid for the Republican presidential nomination even with a report this week that the wave of illegal immigrants from Mexico has ended as many return to their native country.
Activists on both sides demonstrated outside the court as the justices heard the case.
Inside, court members voiced skepticism about parts of the Arizona law, including penalties on illegal immigrants who seek jobs. Still, the justices made clear they see states as having a role to play in addressing the presence of what the government has estimated is 11.5 million unauthorized aliens in the U.S.
“What does sovereignty mean if it does not include the ability to defend your borders?” Justice Antonin Scalia said during the 80-minute session, which ran 20 minutes beyond its scheduled time.
The central legal question is whether the U.S. Immigration and Nationality Act, which says states may cooperate in enforcing federal law, pre-empts the Arizona law.
The administration sued to challenge four provisions in the 2010 Arizona law, known as S.B. 1070. Probably the measure’s most contentious part says police officers must check immigration status when they arrest or stop someone and have “reasonable suspicion” that the person is in the U.S. illegally. The disputed provisions haven’t taken effect.
Early on, Paul Clement, representing Arizona, sought to minimize the provision’s impact. Answering questions from Sotomayor, Clement -- who argued against Verrilli in the health- care case as well -- said if federal officials said they didn’t want to take custody of an illegal immigrant, Arizona police officers would have to release the person unless they had a basis under state law for making an arrest.
That statement set the tone for much of the rest of the session, undercutting Verrilli’s contention that the law encroaches on the exclusive federal right to set immigration policy.
Chief Justice John Roberts repeatedly said federal officials would make the final call about whether a person should be deported or prosecuted for violating federal law.
“All it does is notify the federal government, ‘Here is someone who is here illegally,’” Roberts said. “The discretion to prosecute for federal immigration offenses rests entirely with the attorney general.”
Later, Roberts said, “It seems to me that the federal government just doesn’t want to know who is here illegally or not.”
Two Democratic appointees -- Sotomayor and Justice Stephen Breyer -- joined in that line of questioning. Breyer raised the possibility of upholding the provision with the understanding that it wouldn’t cause people to be detained “significantly longer” than they would have been previously.
“If that were the situation, and we said it had to be the situation, then what in the federal statute would that conflict with?” Breyer asked Verrilli.
The Obama administration says the measure would undermine its efforts to give highest priority to illegal aliens who threaten public safety and those who belong to gangs that smuggle other aliens, drugs and weapons.
“These decisions have to be made at the national level,” Verrilli argued.
Clement said many Arizona police officers already are routinely checking immigration status when they stop a person or make an arrest. The new law would simply extend those “ad hoc” checks into a statewide policy, he said.
“The government’s rather unusual theory that something that’s OK when done ad hoc becomes pre-empted when it’s systematic, I think that theory largely refutes itself,” Clement argued.
One issue not directly before the justices is the contention that the law will lead to racial profiling by police officers. That claim is part of a separate lawsuit being waged by civil rights advocates against the Arizona measure.
In addition to the status-check provision, Arizona’s law would authorize officers to arrest anyone they have “probable cause” to believe is eligible to be deported.
The law also would bar aliens without proper papers from seeking or performing work. It would be a state criminal offense for a foreigner to be in Arizona without correct documentation, subjecting violators to as much as 30 days in prison.
Roberts suggested he was skeptical about the employment provision. Federal law punishes employers that hire illegal aliens rather than focusing on workers seeking jobs.
The Arizona employment provision “does seem to expand beyond the federal government’s determination about the types of sanctions that should govern the employment relationship,” he said.
Verrilli was making his first appearance before the justices since he argued the health-care case in March, squaring off again against Clement, the former solicitor general who represented 26 states challenging the health-care law.
Justice Elena Kagan didn’t take part today’s case. She played a role in the litigation as Obama’s top Supreme Court lawyer before her 2010 appointment to the court.
Her disqualification creates the possibility that the court might divide 4-4 on some aspects of the law. That would leave intact a lower court ruling blocking those provisions, without setting a nationwide precedent.
Arizona says its 370-mile border with Mexico is the crossing point for half the nation’s illegal immigrants, giving it the right to tackle a problem the national government has failed to address.
Arizona had 360,000 unauthorized immigrants in 2011, according to the U.S. Homeland Security Department. During the last four decades, 12 million immigrants came to the U.S. from Mexico, most illegally, according to a report released April 23 by the Pew Hispanic Center, a nonpartisan research group in Washington. Net Mexican migration to the U.S. has now stopped and may have reversed, the report said.
The court last year upheld a separate Arizona law that threatens companies with loss of their corporate charters if they hire illegal immigrants. The 5-3 ruling said a federal law governing immigrant hiring leaves room for states to impose their own penalties for non-compliance.
The current case is Arizona v. United States, 11-182.
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