Sunday, February 12, 2012

Arizona Files Merits Brief in Arizona v. United States

As blogged previously, the U.S. Supreme Court will hear oral arguments in Arizona v. United States on April 25. Last week, the state of Arizona, with Counsel of Record Paul Clement, a former clerk to Justice Scalia and now high Court lawyer for conservative causes, filed the State of Arizona's brief in the case.

The brief allocated most of its argument to defending Sections 2(B) and 6 of Arizona 's S.B. 1070, which involve the requirement that local police verify the immigration status of persons about whom they have a "reasonable suspicion" are undocumented.

Precious few pages are devoted to defending (1) Section 3, the "show your papers" provision that requires immigrants to carry and present, when requested, their "alien registration card"; and (2) Section 5(c), which makes it a crime for an undocumented immigrant to solicit work or to work. Justice Bea, in dissenting from the majority in the Ninth Circuit panel's ruling, agreed that these two provisions were preempted by federal law.

It seems to me that the state of Arizona is almost conceding that two of the four provisions on which the Ninth Circuit upheld the preliminary injunction are in fact preempted by federal law, just as the unanimous panel concluded. Arizona instead focuses on the provisions involving local police involvement in immigration enforcement, which are found in many of the state immigration enforcement laws, including those of Alabama, Georgia, and South Carolina. These provisions have been roundly criticized as creating the potential for increased racial profiling of Latinos, which has been a problem in Arizona. Consider the Justice Department's recent report on the systematic and widespread discrimination against Latinos and immigrants by the Maricopa County (Arizona) Sheriff Department headed by the nortorious Sheriff Joe Arpaio.

In separate sections of the brief, Arizona, in what seemed to me to be a half-hearted effort, claimed that the foreign criticism of S.B. 1070, which was salient to the Ninth Circuit's analysis, was irrelevant and that state immigration enforcement laws like S.B. 1070 do not create "disuniformity concerns." In particular, the brief seems to lack an appreciation for why the criticisms by foreign leaders and governments suggest that state immigration enforcement might have foreign policy repercussions, one of the reasons that immigration traditionally has been placed in the hands of the federal government.

We will keep you informed when the U.S. government's and amicus briefs are submitted.


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