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Obama's attack on Arizona law seems to be failing


Emboldened by signals that the U.S. Supreme Court may uphold parts of Arizona’s immigration law, legislators and activists across the country say they are gearing up to push for similar get-tough measures in their states.

“We’re getting our national network ready to run with the ball, and saturate state legislatures with versions of the law,” said William Gheen, president of Americans for Legal Immigration. “We believe we can pass it in most states.”

That goal may be a stretch, but lawmakers in about a dozen states told the Associated Press they may propose Arizona-style laws if its key components are upheld by the Supreme Court. A ruling is expected in June on the Department of Justice’s appeal that the law conflicts with federal immigration policy.

Dan Stein, president of the Federation for American Immigration Reform, said he was encouraged that several justices suggested during Wednesday’s oral arguments that they are ready to let Arizona enforce the most controversial part of its law — a requirement that police officers check the immigration status of people they suspect are in the country illegally. Another provision allows suspected illegal immigrants to be arrested without warrants.

“The justices sent a clear signal that there’s a huge zone for state action in this area,” Stein said. “There will be an enormous amount of energy spent in next few months examining the full range of possibilities.”

For starters, a ruling in favor of Arizona’s Senate Bill 1070 would likely enable Alabama, Georgia, Indiana, South Carolina and Utah to move forward with comparable measures that were enacted but have been on hold pending the high court’s decision.


In one of the most damning statements of the day, Chief Justice John Roberts stated, after listening to Verrilli’s argument, that “It seems to me that the federal government just doesn’t want to know who is here illegally or not.”

Justice Anthony Kennedy then weighed in with this: “So you’re saying the government has a legitimate interest in not enforcing its laws?”

And in response to the solicitor general’s argument that the president had diplomatic reasons for his non-enforcement policies, Justice Antonin Scalia chided the solicitor general with this: “So we have to enforce our laws in a manner that will please Mexico. Is that what you’re saying?”

Those statements, and many others like them, by a solid majority of the court do not bode well for the government’s position that the “ask when stopped” provisions of Arizona’s law are pre-empted by federal executive enforcement policy.

In fact, the government’s argument that it had to set enforcement priorities because of limited resources was flatly inconsistent with Arizona’s attempts to provide a force multiplier for enforcement of existing federal immigration law. The court seemed well inclined to uphold these provisions of the Arizona law, the ones that have generated the most controversy.

Employee Sanctions Questioned

The provision of the Arizona law allowing the state to prosecute illegal immigrants who unlawfully seek employment (rather than just the employers, as federal law provides) is on less certain ground. The justices appeared to be leaning toward accepting the federal government’s argument that when it imposed sanctions only on employers of illegal immigrants rather than the employees themselves, Congress implicitly intended to leave the illegal-immigrant employees alone. This prevented the states from imposing their own sanctions on the employees under what is known as “field pre-emption.”

If that is the only provision that does not survive the Supreme Court’s ruling, expected in late June, most of the Arizona law, including the most significant and high-profile provisions, will go back into effect as early as July. The other states that have adopted similar immigration-enforcement laws while this litigation has been pending will likewise be able to start enforcing their laws. And we can probably expect to see several other states weigh in with new laws of their own, once the Supreme Court gives them the green light.