Arizona Immigration Law’s Constitutionality still in Question

On Wednesday, Arizona Governor Jan Brewer (R-AZ) asked the U.S. Supreme Court to overturn a lower court’s injunction that bars the enforcement of much of the state’s controversial SB 1070 immigration law. Arizona’s legal position got a boost in May when the Supreme Court, in a 5-3 decision, upheld a state employment law that would take away the business licenses of employers who knowingly hired illegal workers.

When the statute passed last year, Arizona lawmakers directed police to check the immigration status of people they lawfully stopped and suspected of being in the country illegally. The Obama administration took the case to Court and argued that the federal government has exclusive control over immigration enforcement.

On July 28, 2010, U.S. District Court Judge Susan Bolton blocked enforcement of several parts of the statute. The 9th Circuit Court of Appeals upheld Bolton’s ruling last April, finding that Congress “explicitly required that in enforcing federal immigration law, state and local officers ‘shall’ be directed by the Attorney General.”

The Petition for Writ of Certiorari claims that the 9th Circuit ruling affirms “that state are completely foreclosed from enforcing federal law or from enacting state laws that prohibit conduct made unlawful by Congress”. For Governor Brewer, the 9th Circuit ruling created an express and acknowledged circuit split over the preemptive force of the federal immigration laws because the 10th Circuit views those laws as affirmatively encouraging cooperative enforcement by states.

If the Justices decide to take up the case, they would hear arguments in the winter and probably hand down a ruling in late spring, as the presidential race gets underway.