At the outset of the October 2011 term, USA Today ran an article that declared, “The Supreme Court opens a potentially epic term.” So far, the Court has not disappointed. Having already granted cert in several landmark cases, which include the Health Care Reform Case and GPS Tracking Case, OT 2011 is shaping up to be a blockbuster term indeed. Today the High Court added yet another one to the list: the "Arizona Immigration Case" involving the state's Senate Bill 1070. As the Washington Post reported here, the Court’s decision today “to review Arizona’s controversial illegal immigration law was just the latest addition to what many see as its most important and politically charged docket in recent years."
The case, Arizona v. United States, will force the eight Justices (Justice Kagan will recuse herself) to address the tension between the Constitution’s general reservation of rights to the states, particularly in the area of law enforcement, and the Constitution’s delegation of authority to the federal government over matters of foreign policy and naturalization. Not surprisingly, this thorny issue has produced a split in the circuit courts, which the Court must now resolve.
The question presented to the Court in Arizona asks “whether the federal immigration laws preclude Arizona’s efforts at cooperative law enforcement and impliedly preempt these four provisions of S.B. 1070 on their face.” The particular federal immigration law in question is 8 U.S.C. § 1252c, a statute that is sweeping in its scope, yet silent on Congress's desire to preempt overlapping state law.
In 1999, the Tenth Circuit summarized this statute as one that
authorizes state and local law-enforcement officers to arrest illegal aliens if all of the following three conditions are met: (1) the arrest is permitted by state and local law; (2) the alien was deported or left the United States after a previous felony conviction; and (3) prior to arrest, the officer obtains "appropriate confirmation" of the alien's "status" from the INS.
United States v. Vasquez-Alvarez, 176 F.3d 1294, 1296 (10th Cir. 1999), cert. denied, 528 U.S. 913. In Vasquez-Alvarez, the Tenth Circuit considered “whether Congress intended § 1252c to preempt preexisting state law empowering state and local officers to arrest for violations of federal immigration laws.” In rejecting this proposition, the court found that “[b]oth the plain language and legislative history of § 1252c reflect that Congress intended the provision to displace perceived Federal limitations on the authority of state and local officers to arrest ‘criminal illegal aliens’” rather than limit state and local authority.
More than a decade later, however, the Ninth Circuit reached the exact opposite conclusion in Arizona (see here), as explained in the state's petition to the Supreme Court:
[T]he decision below creates an express and acknowledged circuit split over the preemptive force of the federal immigration laws. The Tenth Circuit views those laws as affirmatively encouraging cooperative enforcement by States; the Ninth Circuit reads such authorization for specific cooperation as negating any inherent state law enforcement authority.
In his 38-page partial dissent, Judge Carlos Bea chastised his Ninth Circuit colleagues in the majority for reading the statute in such a manner, stating, “I cannot join the majority in criticizing the Tenth Circuit for merely reading the statute’s words,” followed by a footnote that adds, “But I can criticize the majority for initiating a needless circuit split between our court and the Tenth Circuit, contrary to our own declared preference to avoid such circuit splits.”
Oral arguments will likely be held in April 2012 followed by a decision as early as June.
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