By Valeria Fernandez
New America Media
Gov. Jan Brewer plans to petition the U.S. Supreme Court to lift a federal court’s preliminary injunction that blocked major portions of a controversial state immigration law from going into effect. But whether the nation’s highest tribunal will consider ruling on SB 1070 is a whole other story, according to legal experts.
“It’s highly unlikely that the Supreme Court would take the case at this point,” said Thomas A. Saenz, president and legal counsel for the Mexican American Legal Defense and Educational Fund (MALDEF), an organization involved in one of the lawsuits against SB 1070.
Saenz argued the higher court is more likely to be interested in rulings on the merits of a law — whether or not it is constitutional — than deciding on an injunction.
“They like cases that the courts below have every opportunity to consider,” he said, adding that the Supreme Court is more likely to look at instances where there is a difference of opinion between the courts.
At this point there are no conflicting decisions among lower courts on Arizona’s immigration law that made it a state crime to be undocumented in Arizona.
Gov. Brewer signed SB 1070 into law on April 23, 2010. In July, a federal judge enjoined four key portions of the law: the main provision that made it a state crime to be an undocumented immigrant in the state; the provision that allowed the warrantless arrest of a person where there is probable cause that they committed an offense that could make them removable from the country; the provision that makes it a crime for undocumented immigrants to solicit work, and the provision that requires police officers to determine the immigration status of anyone they stop.
Opponents of SB 1070 have argued that the law would lead to the use of racial profiling by the police. The law’s defenders, among them bill’s architect Republican Sen. Russell Pearce, contend that it would help with border security.
Arizona was the first state to pass such a bill that has sparked a wave of copycat bills across the country — something Attorney General Tom Horne says might make the Supreme Court justices more likely to consider the governor’s petition.
“I think the whole country would be interested in the result. That’s why I think they’ll take the case,” Horne told New America Media.
The appeal, which has to be filed before July 11, comes on the heels of a ruling in April by the 9th District Circuit Court of Appeals. Two of three judges voted to turn down the state’s request to reverse a decision by federal judge Susan Bolton that blocked four major parts of the law from going into effect.
Brewer had the choice of requesting an “en banc” review from the entire Ninth District Court or appealing to the Supreme Court. Horne said they decided the latter would be faster.
But even if the justices agree to hear the case, observers say there’s a long road ahead. The Supreme Court has stopped hearing oral arguments in this term, so the state will have to wait until October when the next term begins for their case to be considered.
Meanwhile, attorneys disagree on whether the appeal to the Su preme Court was the best strategy. Saenz believes the high court could reject the case because Arizona did not request an “en banc” review first in the lower court.
Others, like civil rights attorney Daniel Ortega, argue that Brewer believed she would have lost again at the 9th District Court of Appeals and that this was her best bet.
“I don’t think she has a chance of winning anywhere. The truth is that this law is clearly unconstitutional without any doubt,” Ortega said.
A pending Supreme Court ruling on another Arizona law might shed light on the direction that the justices will go on immigration issues, according to constitutional law expert and Arizona State University Professor Paul Bender.
Supreme Court justices are currently reviewing a challenge to the Arizona’s employer sanctions law. The law, passed in 2007, imposed sanctions on businesses that knowingly hire undocumented workers.
Opponents — including the Justice Department — argue that Arizona is attempting to regulate a federal issue. Supporters say there are some areas in which the states can get involved, such as the licensing of businesses.
But Muzaffar Chishti, a lawyer who monitors state and local immigration law for the nonpartisan Migration Policy Institute, said the arguments against SB 1070 are much stronger than the case against the employer sanctions law.
Chishti explained that at the heart of the issue is the argument that federal law takes precedence when it comes to the regulation of immigration, and SB 1070 conflicts with the immigration priorities of the federal government.
Judge Bolton agreed with that argument in her ruling last July, saying that the United States would suffer “irreparable harm” if the law went into effect, and that it would interfere with federal policy.
The recent decision by the 9th District Court of Appeals reinforced Bolton’s conclusion. In the decision, Judge Richard Paez wrote: “By imposing mandatory obligations on state and local officers, Arizona interferes with the federal government’s authority to implement its priorities and strategies in law enforcement, turning Arizona officers into state-directed DHS agents.”
At the end of the day, most attorneys agree that the issue of states passing immigration law is new territory for the Supreme Court and it’s very hard to predict whether the high court will take on the case.
Even if the Supreme Court decides to hear Arizona’s arguments, Chishti said, it is highly improbable that they would find SB 1070 to be constitutional.
“There’s a chance they will take it, but it’s less likely that they will uphold this law,” Chishti concluded.
Brewer said during a press conference on Monday that she plans to use $4 million in private funds to continue the defense of SB 1070. But critics of the law, like Luis Avila, president of the pro-immigrant coalition Somos America, contend that she is not saving taxpayers any money.
A national boycott against Arizona has already cost the state an estimated $100 million in lost revenue from canceled conferences and conventions, according to a recent study by the Center for American Progress.
“Continuing to push this anti-immigrant ideology in the state not only impacts Arizona’s image,” Avila said, “but also the fiscal deficit in the state.”