On April 25, the United States Supreme Court will hear oral arguments on Arizona, et al., v. United States, a case which questions the constitutional legality of Arizona’s restrictive SB 1070 immigration law that was passed by the state legislature in 2010. The Court, in taking up the case, jumps right into the center of a national political debate. Paul Clement, who argued against U.S. Solicitor General Donald B. Verrilli Jr. in last week’s equally highly charged hearings on the federal health care law, will do so again on behalf of the plaintiff.
The decision on whether to uphold the April 2011 ruling from the Ninth Circuit, which barred certain provisions of SB 1070 from taking effect, will fundamentally shape the way immigration policy is determined in the United States.
Arizona argues that a state should have the right to pass whatever measures it deems prudent—independent of how legislation will affect the historical, long-standing rights that immigrants (and those who may appear to be immigrants) have long enjoyed in this country. But in its decision last year the Ninth Circuit noted that: "The Arizona statute before us has become a symbol […] and a chilling foretaste of what other states might attempt."
The Ninth Circuit has reason to worry about the “chilling effect,” and siding with Arizona would send chills across the country and our hemisphere.
In total, 22 amicus briefs (friend-of-the-court briefs) were filed last month in opposition to SB 1070. And the briefs came from a range of people and governments who rightly worry about the effects of upholding SB 1070. Eleven U.S. states (including my home state of New York) as well as 68 Members of Congress—in two separate briefs—argue that federal law preempts state efforts to apprehend and remove immigrants.
On the economic front, former U.S. Immigration and Customs Enforcement commissioners as well as Arizona Employers for Immigration Reform (again, in two separate briefs) discuss how the Arizona law affects and burdens interstate commerce—with regulating such commerce being a power of the U.S. federal government. Mexico, in a brief joined by 17 Latin American countries, argues how SB 1070 will impede diplomatic collaboration and undermine trade.
Former U.S. Secretary of State Madeleine Albright and other prominent former U.S. government officials have made the argument that immigration policy is a foreign relations issue and that the federal government has sole jurisdiction over foreign affairs.
The list of those in support of the U.S. government even includes briefs submitted by two former Arizona attorney generals, Catholic bishops, labor unions, civil rights group, and Latino advocacy groups.
While an equal number of briefs was submitted in February in support of Arizona, a review of those briefs show the one-dimensional nature of those who support SB 1070. A few of those filing in favor of SB 1070 include: State Senator Russell Pierce (the author of the bill who has since been recalled by Arizona voters); Freedom Watch; Secure States Initiative; Maricopa County Sheriff Joseph Arpaio (currently under investigation for racial profiling of Latinos); and Minute Men Civil Defense Corps. Here, as well, select states (led by Michigan) and Members of Congress filed in favor of Arizona. But still, it is clear that while those who support SB 1070 may be vocal in their opinions, they do not represent a broad swath of our national interests, including our relations with countries throughout he hemisphere.
Some view the Court’s decision as possibly either opening up the floodgates for restrictive laws or slamming the door shut on the growing trend—especially in the Southeast—of using undocumented immigrants to score political points.
The truth of the matter is that for even those who are not concerned about the plight of undocumented immigrants, and importantly, the racial profiling that restrictive laws then cast on the population at large (note the current case against Sheriff Arpaio), SB 1070 and other laws like it burden local economies. As found in a recent Americas Society report, restrictive measures hurt job creation and economic growth, especially when compared to more welcoming cities. Arizona, as noted in the Arizona Employers for Immigration Reform brief, will see SB 1070 resulting in “crops like lettuce […] be increasingly sourced from Mexico, not from places like Yuma, representing $9 billion in lost farm production.” A post in LatIntelligence yesterday further details some of the commerce effect.
We should all be paying close attention to the arguments and the justices’ questioning on April 25. Their ultimate decision will bear important consequences for generations to come.
*Jason Marczak is a contributing blogger to AQ Online. He is senior editor of Americas Quarterly, managing editor of AQ Online and director of policy at Americas Society and Council of the Americas.