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Supreme Court to review SB 1070 injunction
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Supreme Court to review SB 1070 injunction

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The U.S. Supreme Court announced Monday that it will review the preliminary injunction that is blocking enforcement of Arizona's controversial anti-immigration law SB 1070.

Many of the provisions of the law were blocked when a federal judge ruled against the state in July 2010.

That decision was upheld by the 9th Circuit Court of Appeals, and Gov. Jan Brewer asked the Supreme Court to take up the case.

While the case before the high court is technically a review of the injunction, and not a decision on the merits of the case, a decision by the court will be pivotal for SB 1070's future.

No date has been set to hear arguments.

In a Facebook post, Brewer praised the court for taking up the case: "I am confident the High Court will uphold Arizona’s constitutional authority and obligation to protect the safety and welfare of its citizens."

"The Arizona law mirrors federal immigration law in many respects, and gives state and local law enforcement agencies a vital tool to deal with suspected illegal immigrants," said Arizona Attorney General Tom Horne in a press release, greeting the courts's grant of certiorari.

The lawsuit

SB 1070 was signed by Brewer in April 2010, and was set to take effect on July 29.

The U.S. Justice Department filed a suit before SB 1070 took force, asking the court to delay enforcement until it faced legal review.

Just before the law went into effect, U.S. District Judge Susan Bolton issued a preliminary injunction, halting much of the law.

Bolton stopped the parts of the law that:

  • Required police to determine the immigration status of those they arrest and hold them until that status is learned, and check the status of those they stop and detain, if they suspect them of being in the country illegally.
  • Allowed police to make warrantless arrests if there is probable cause to believe people have committed public offenses that make them removable from the country.
  • Made it a crime for illegal immigrants to solicit, apply for or perform work.
  • Made it a crime to not apply for or carry alien-registration papers.

Parts of the law were allowed to take effect, including those that:

  • Require police to enforce federal immigration laws to their fullest extent.
  • Make it a crime to impede traffic to pick up a day laborer.
  • Make it a crime to transport or harbor an illegal immigrant.

The state appealed Bolton's ruling, which was upheld in a 2-1 decision by the 9th Circuit in April.

"We simply are not persuaded that Arizona has the authority to unilaterally transform state and local law-enforcement officers into a state-controlled force to carry out its declared policy of attrition," the court said.

High court

The issue before the Supreme Court is how far states can go in creating their own immigration policies.

The Constitution assigns the power to regulate immigration to the federal government, allowing it to create a "uniform rule of naturalization."

The Justice Department maintains that SB 1070 violates that federal preemption, and that allowing it to become law would lead to a patchwork of immigration laws in the 50 states.

In a brief arguing that the Supreme Court should not take up the case, Justice said the law upsets a balance of "law enforcement priorities, foreign-relations considerations and humanitarian concerns."

Horne blasted that position Monday:

One little-noticed aspect of the 9th Circuit decision to be reviewed is its conclusion that SB 1070 unlawfully trespasses on federal monopoly of foreign relations. Arizona has not opened any embassies, consulates, nor has it entered into any agreements with foreign countries. What it has done is pass a law that foreign countries disagree with. This is common example, Arizona has capital punishment, which many foreign countries disagree with. If a federal court can cancel state laws on the grounds that foreign countries disagree with them, and this therefore trespasses on the federal monopoly on foreign relations, then the sovereignty of our entire country has been severely weakened.

If the court upholds the injunction, the case would return to Bolton's courtroom for further legal maneuvering. If that happens, given the decisiveness with which the lower courts have already ruled on it, SB 1070 would likely be found wanting.

The high court does have the option of lifting only part of the injunction, or tossing it out altogether, while the case continues to wind its way through the courts.

Justice Elena Kagan, who worked on the case as solicitor general, recused herself from participating further.

A 4-4 split decision would leave the injunction in place.

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