Saturday, April 21, 2012

Oral Arguments on Arizona v. United States: Shoot-Out at the OK Corral

On Wednesday, April 25, the Supreme Court will hear oral arguments in Arizona v. United States and the constitutionality of the Arisona immigration enforcement law known as S.B. 1070. Advocate for conservative causes Paul D. Clement of the law firm of Bancroft PLLC will argue for the state of Arizona. Donald B. Verrilli, Jr. from the Solicitor General's office, who had a tough time before the Court last month attempting to defend President Obama's health care reform legislation, will argue on behalf of the United States. Recall that Justice Elena Kagan recuised herself from the case and eight Justices will now decide it.

Lyle Denniston has a careful analysis of Arizona v. United States, the arguments laid out in the briefs, and possible outcomes on SCOTUSBlog. Earlier in the week on ImmigrationProf, I laid out some of the relevant context and legal issues raised by the case. See also this article touching on some of the civil rights impacts of S.B. 1070.

One possible outcome warrants consideration. In the Ninth Circuit, Judge Carlos Bea dissented from the majority's invalidation of two of the four provisions of S.B. 1070. As he stated,

"I respectfully dissent from the majority opinion as to Sections 2(B) (entitled `Cooperation and assistance in enforcement of immigration laws; indemnification') and 6 (entitled `Arrest by officer without warrant'), finding their reasoning as to Congress's intent without support in the relevant statutes and case law. As to Sections 3 and 5(C), I concur in the result and the majority of the reasoning . . . ."

Judge Bea's approach might be attractive to several of the Justices, including Chief Justice Roberts, Scalia, Kennedy, Alito, and Thomas. Attracting one or more of these Justices might result in enough votes (along with Justices Breyer, Ginsburg, and Sotomayor, who dissented in last Term's decision in Chamber of Commerce v. Whiting, which upheld the Arizona law that stripped business licenses from the employers of undocumented immigrants), to uphold part of the Ninth Circuit's ruling.


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