When attorney Paul Clement walks into the U.S. Supreme Court on Wednesday, he'll try to convince at least five justices that Arizona has an inherent right to enforce federal immigration laws.
If he prevails, he'll ask the nation's top judges to overturn lower court decisions that say federal law trumps key provisions of SB 1070, the state's tough immigration measure.
Three law professors asked to handicap Clement's chances say the former U.S. solicitor general, hired by Gov. Jan Brewer to argue the case, faces a mighty challenge.
Everything else being equal, the conservative justices would tend to side with the state in any legal battle, said Paul Bender of Arizona State University's College of Law. And the high court's liberal contingent is short one player since Justice Elena Kagan recused herself. She was federal solicitor general in the Obama administration, which is suing the state.
But this isn't a normal case.
"This is not a question of states' rights versus individual rights," said Gabriel "Jack" Chin of the University of California-Davis.
"This is a conflict between states' rights and traditional federal authority," he said. "There, it's not clear the traditional conservatives are interested in undermining federal authority in foreign policy and national security."
Foreign policy Affected
That's precisely what Solicitor General Donald Verrilli Jr. has argued, with the Obama administration even presenting arguments from foreign governments on how Arizona's law interferes with their relations with the United States.
That also differentiates this case markedly from the legal arguments over the federal Affordable Care Act, one that, curiously enough, pitted the same two attorneys arguing this case against each other.
SB 1070 is designed to give police more power to detain and arrest illegal immigrants. But a federal judge blocked the state from implementing several key provisions, and the 9th U.S. Circuit Court of Appeals agreed with that decision. (See accompanying story above.)
The state is arguing that nothing in SB 1070 conflicts with federal laws. In fact, it contends that the law lets Arizona help the federal government to enforce its laws, said Robert Smith of Suffolk University Law School in Boston.
Smith said Congress did anticipate state-federal cooperation. But he said federal law says that is supposed to be in the context of an actual agreement between the federal government and state or local agencies, known as 287(g) agreements.
"When you reach those cooperative agreements, you agree that the attorney general and the Department of Justice are monitoring and supervising what you do," he said. "Here, Arizona is seeking a much more autonomous role."
Chin said it's even more basic than that. "One of the ways you can tell when you're not cooperating," he said, "is when the attorney general sues you to get you to stop doing what you're doing."
Clement argues that Arizona has the inherent power to help enforce federal law.
But Bender called that notion absurd."Suppose the state starting charging people with cheating on their federal income tax," he said, saying it was just helping the federal government enforce its laws.
"Nobody would think they could do that. And the reason is the IRS has to make the decision about how to enforce the laws."
Smith said one of Verrilli's best weapons in arguing that Arizona is enacting its own immigration scheme is going to be the Arizona law itself.
It says the law's provisions "are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States."
In essence, Smith said, that is a statement that Arizona disagrees with the federal approach and federal policies, pointing up the direct conflict.
The law professors say Clement does have some good arguments.
One, said Chin, would be asking the court to overrule the concept that immigration is an exclusive federal power.
"A lot of people ... scholars, activists on the conservative side, say that is how the case should be resolved, (that) states have some independent power to regulate non-citizens who come through their territory," he said. "It's not out of the question."
But Chin, who used to teach at the University of Arizona, called it a "100-to-one shot."
Along the same lines, Smith said Clement could try to distinguish between regulating immigration and regulating immigrants.
"States can't set the ground rules for immigration," he said. "The states can't set policy"'
But in arguing that they're just regulating immigrants - especially those who are in this country illegally - Smith said Arizona could argue it is not interfering with the system of immigration.
Tie vote possible
With Kagan sitting out the case, her absence creates the possibility of a 4-4 tie. In that case, the Obama administration wins, at least for now, because it leaves intact the injunction issued by U.S. District Court Judge Susan Bolton and upheld by the 9th Circuit.
But it would leave open the possibility that the high court will have to look at the issue again after Bolton has a full-blown trial on the merits of the law, something she has held off doing until the Supreme Court issues its decision, likely in June.
Bender said that while the justices are looking at the legal issues, they are not immune to what is going on around them. That includes a hearing the day before at the Senate Judiciary Committee, where one of the scheduled witnesses is former state Sen. Russell Pearce, the sponsor of the law.
"They read the papers," Bender said of the justices.
"If Russell Pearce should look like a crazy man in that hearing and come across as anti-immigrant, anti-federal government, a loose cannon, that would hurt the state."
Issues at stake in the US Supreme Court hearing
These are the four provisions of SB 1070 that are before the U.S. Supreme Court, along with comments from the 9th U.S. Circuit Court of Appeals ruling that said federal law trumped them.
In each of the four cases, the court said Arizona's immigration law has a "detrimental effect on foreign affairs, and its potential to lead to 50 different state immigration schemes piling on top of the federal scheme." The judges also had specific comments about the four provisions.
1. Issue before the Supreme Court: Section 2(B) requires police to try to determine the immigration status of someone they have already stopped if there is "reasonable suspicion" that the person is in this country illegally. It also requires police to determine the immigration status of anyone arrested.
The Court of Appeals says: "By imposing mandatory obligation 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 Department of Homeland Security agents. As a result, Section 2(B) interferes with Congress' delegation of discretion to the executive branch in enforcing the Immigration and Naturalization Act."
2. Issue before the Supreme Court: Section 3 makes it a state crime to disobey federal laws requiring resident immigrants to apply for or carry alien registration papers.
The Court of Appeals says: "Nothing in the text of the Immigration and Naturalization's registration provisions indicates that Congress intended for states to participate in the enforcement or punishment of federal immigration rules."
3. Issue before the Supreme Court: Section 5(C) makes it a crime for an undocumented worker to apply for work in a public place or perform work as an employee or independent contractor in Arizona.
The Court of Appeals says: "Congress did not intend to permit the criminalization of work … as a method of discouraging immigrant employment."
4. Issue before the Supreme Court: Section 6 lets police make an arrest without a warrant if there is "probable cause" the offender committed a crime that would get him or her kicked out of the country.
The Court of Appeals says: "Section 6 interferes with the federal government's prerogative to make removability determinations and set priorities with regard to the enforcement of civil immigration laws."