Supreme Court Arizona ruling could shape immigration reform

The Supreme Court on Monday agreed to hear a challenge to a 2007 Arizona law penalizing employers who hire undocumented migrants.

The US Supreme Court agreed Monday to hear a legal challenge by business, civil rights and immigration groups to a 2007 Arizona law that penalizes employers who knowingly hire undocumented immigrants.

The case will not be a ruling on Arizona’s controversial SB 1070, which has resulted in national furor, economic boycotts, and a high-profile confrontation between Arizona Gov. Jan Brewer and President Obama.

But it could shed light on how courts will be inclined to rule on the lawsuits that have been filed challenging SB 1070, give direction to how states and localities – including Arizona – may proceed with new immigration laws, and help shape comprehensive immigration reform that has been percolating – many say too slowly – in Congress.

“This is potentially the biggest immigration ruling of the past 30 years,” says Kevin Johnson, Dean of the UC Davis Law School and a former member of candidate Obama’s Immigration Policy Group. “Over the past few years, there have been hosts of states and localities attempting to regulate immigration, from Texas to Pennsylvania to Arizona to New Jersey, and this will likely tell us what if any power these states have to make these laws.”

The issue, Mr. Johnson says, has to do with a legal concept known as “federal preemption,” which comes from the supremacy clause of the US constitution, holding that in general, federal law trumps state law.

“This does not necessarily mean, though, that the states and the national government cannot ever legislate on the same subject. They do all the time," says Richard Garnett, Professor of Law and Associate Dean at Notre Dame Law School. "The question will be, in this case (as with the more recent Arizona law) whether the Arizona law interferes in some way with the federal policy.”

A decision from the nation’s top court will bring clarity to immigration disputes nationwide, says Daniel Giaquinto, an attorney with the New Jersey-based law firm of Kern Augustine Conroy & Schoppmann. “The sooner Arizona has an answer to these questions, the sooner the whole nation has answers … and the sooner we can move on and get a policy that works,” he says.

In addition to giving clarity to Arizona and other states, the Supreme Court's decision could more formal momentum for comprehensive immigration reform, say analysts.

“This translates into added pressure on Congress to take up the immigration reform overhaul it failed to accomplish in 2007,” says William Perez, Associate Professor of Education, Claremont Graduate University.

He says the Arizona case clearly highlights that the federal government's inaction is encouraging states to implement de facto immigration regulation.

He and others point out that the Justice Department's legal challenge of Arizona's SB 1070 means that along with business and civil rights organizations, the executive and judicial branches of the federal government will be pressing Congress to take up immigration reform legislation.

“If the Supreme Court rules that the 2007 Arizona law is in violation of federal jurisdiction, this may well mean that Comprehensive Immigration Reform will be a top legislative priority when Congress resumes after the November elections,” says Perez.

Besides the fact that several states have been wrestling with the “federal pre-emption” doctrine, legal analysts say the other reason the US Supreme Court took the case is to help clarify apparent division between lower courts.

The 9th Circuit Federal Court has already upheld the Arizona law. But the 10th circuit in Oklahoma struck down a similar law. Most analysts are loathe to predict what the final outcome will be. Arguments and ruling will be in an upcoming term that begins in October.

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• Arizona immigration bill: just the latest among state measures
• Is Arizona's new immigration law unconstitutional?
• Employers feel heat on immigration