Arizona Gov. Jan Brewer announced Monday that the state will go on to the Supreme Court, in coming weeks, to test its constitutional authority to put tight restrictions on undocumented immigrants living in the state.  Saying that “time is of the essence,” the governor reported that Arizona will forgo any new maneuvers in lower courts in order to get legal questions “resolved quickly” on its controversial law, known as S.B. 1070.  The Ninth Circuit Court temporarily blocked key parts of the law in April; that ruling is discussed in this post.

While the governor said the state would “immediately petition” the Justices for review, her statement also noted that the state has  until July 11 to file its petition challenging the Ninth Circuit.  It also pointed out that the Court might not act on the case until “late September or early October.”  There is no guarantee, of course, that the Court will agree to hear the case.  In fact, if the Court in the meantime acts either to shore up or limit state power over aliens, in an already pending case, what the Justices may do is to send the Arizona case back to the Ninth Circuit for further review.

The Court on December 8 heard the case of U.S. Chamber of Commerce v. Whiting (docket 09-115) testing state powers over the workplace rights of aliens living within state borders, and that is somewhat related to at least parts of the Arizona law involved in the state’s planned new appeal.  Presumably, the Court will decide the Whiting case before it recesses this Term for the summer.

The Whiting case does raise the broad question of how far states may go to impose their own controls on undocumented immigrants in the U.S., since Congress has taken a number of measures as part of its regulation of immigration generally.   That potential no doubt led the Court to agree to hear the case, especially after the Obama Administration urged it to do so to clear up federal vs. state actions in this field.

The Whiting case, though, does not have any state law provision close to the most controversial one in Arizona’s S.B. 1070: a requirement that police arrest and detain anyone they choose to single out until they have determined the individual’s immigration status.   The Ninth Circuit blocked enforcement of that requirement, along with other parts of S.B. 1070.

The state of Arizona had the option of asking the full Ninth Circuit to take the case en banc to rule on S.B. 1070, but the governor’s announcement Monday made clear that the state will not now attempt that option.

Posted in Cases in the Pipeline, Immigration

Recommended Citation: Lyle Denniston, Arizona to appeal on alien controls, SCOTUSblog (May. 9, 2011, 4:21 PM), http://www.scotusblog.com/2011/05/arizona-appeals-on-alien-controls/