Wednesday, August 10, 2011

Will Arizona File for Certiorari Today?

The state of Arizona's deadline for filing for certiorari in the U.S. Supreme Court in U.S. v. Arizona is today. Gov. Jan Brewer was disappointed with the Ninth Circuit decision striking down four critical immigration provisions of the controversial Arizona law S.B. 1070. Stay tuned!

UPDATE: As promised, Arizona filed for cert today. For Lyle Denniston's analysis of the cert petition on SCOTUSBlog, with a link to the petition, click here. AP reports on the filing here.

As previously announced, Paul Clement, Solicitor General under President George W Bush who has emerged asthe Supreme Court advocate for conservative causes, is Counsel of Record for the State of Arizona. Ruth Robson on the Constitutional Law Professors blog thoughtfully outlines the arguments in the cert peition.

I must say that, especially given that the Counsel of Record on thr petition was a former Solictor General, the brief seems strident and a bit over-the-top in its shots at the majority of the Ninth Circuit. Here are a few examples:

Petition, p. 18: "[T]he Ninth Circuit held that state efforts to facilitate enforcement or impose parallel prohibitions on conduct prohibited by federal immigration law are verboten." (empohjasis added). But how could this broad, unqualified statement be true? The Ninth Circuit did hold that four sections of S.B. 1070 went to far but left large portions of the law intact. Nor did anything in the Ninth Circuit's decision in United States v. Arizona do anything to Arizona's other recent law designed to combat undocumented immigration, which was upheld by the Supreme Court in Chamber of Commerce v. Whiting.

Petition, p. 16: "The Ninth CIrcuit has completely forceclosed Arizona's effort to address the disproportionate impact of unlawful immigration in a State with a 370-mile border with Mexico." Again, the Arizona business licensing law upheld in Chamber of Commerce v. Whiting remains intact as does most of S.B. 1070. How then did the Ninth Circuit "completely foreclose" the concerted effort of Arizona to decrease undocumented immigration?

Petition, p. 27; "The Ninth Circuit's rule -- that States may not take any investigative or enforcement action against aliens based on their civil violations of the immigration laws without an express permission slip from Congress -- directly conflicts with the approach of [numerous] Circuits." (emphasis added). But what about actions taken pursuant to INA § 287(g) agreements, teh Secure Communities Program, etc., etc.? Once again, the Petition's hyperbole, no doubt designed to grab the Supreme Court's attention, undercuts the force of its arguments and should make teh Court pause.


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