Supreme Court accepts Arizona’s appeal of immigration-law decision

posted at 11:45 am on December 12, 2011 by Ed Morrissey

Arizona has won a chance at the Supreme Court to reverse an appellate ruling that blocks enforcement of SB1070, the bill that requires law enforcement officers to check immigration status for already-detained suspects when reasonable cause presents itself.  The grant of certiorari hints that the court may have issues with the earlier ruling, although a hint is all it is:

The Supreme Court announced Monday they will hear a challenge to Arizona’s controversial immigration law, setting up another high-profile decision for the court’s coming term, according to the AP.

Arizona asked the court to allow the state to enforce legislation that has been blocked after being challenged by the Obama administration, including provisions that would enable police officers to question a person’s immigration status if they suspect they are in the country illegally. The law would also make it a crime to not carry proof of legal immigration status, make it agaist state law for an illegal immigrant to seek employment, and allow police to detain those suspected of being illegal immigrants without a warrant. The 9th Circut Court of Appeals blocked each of those provisions in April.

Don’t forget that it takes four yes votes to grant cert to an appeal.  That could either mean that four justices already think that the 9th Circuit’s decision may be flawed, or that they see an important need to set precedent with this case.  Neither interpretation bodes well for the DoJ, which obviously would have been much happier with a rejection of cert by the court.

The announcement included an interesting note from the court:

The petition for a writ of certiorari is granted.  Justice Kagan took no part in the consideration or decision of this petition.

Kagan’s recusal probably relates to the Obama administration’s efforts to block enforcement of SB1070.  Undoubtedly, Kagan would have taken part in those strategy sessions as Solicitor General, so the recusal is a bit of a no-brainer.  It won’t make much difference in the end result, though.  This case will rest on whether the conservative wing of the court unites on this point and can carry Justice Anthony Kennedy along with them, and perhaps one or two of the liberal wing as well.  After all, the Department of Justice has programs that encourage local and state law-enforcement agencies to pursue immigration violations, and the DoJ’s argument that states pursuing these violations somehow intrudes on their ability to set law-enforcement priorities is a rather weak retort, considering both the existence of those programs and the notable lack of effort in enforcing immigration law — a lack of effort that long precedes the Obama administration.

The recusal allows Think Progress to argue that people should back off of demands that Kagan recuse herself in the ObamaCare case:

One thing today’s order should put to rest, however, is the ridiculous suggestion that Justice Kagan needs to recuse from the Affordable Care Act litigation. Since joining the Court, Justice Kagan has scrupulously avoided sitting on any case she worked on while Solicitor General — even though this took her off of dozens of cases. Today’s order shows that Kagan is no less attentive to her ethical obligations even when they arise in high profile cases that carry a great deal of political baggage for the president that appointed her.

Well, that only works if Kagan really didn’t participate in crafting strategies for the legal defense of ObamaCare, which some documents strongly suggest otherwise.  Besides, a recusal in this case is not terribly meaningful to the case itself, although it’s certainly legitimate to argue that it displays Kagan’s approach to judicial ethics.  The appellate court, as Think Progress points out, overturned most of SB1070, so a tie in the Supreme Court would keep that decision in place.  The Supreme Court’s test case for ObamaCare was also an overturning of the law at the appellate level, and a SCOTUS tie in that case would mean ObamaCare’s total rejection.  Kagan is much more important for ObamaCare than she is on this case.  I’m not impressed by recusal calls in any case, but it’s important to keep that context in mind.


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Mr. Kagan will not be hearing the appeal.

angryed on December 12, 2011 at 11:49 AM

Game on.

listens2glenn on December 12, 2011 at 11:49 AM

To bad she can’t recuse her second chin.

RonnyTucker on December 12, 2011 at 11:51 AM

The recusal allows Think Progress to argue that people should back off of demands that Kagan recuse herself in the ObamaCare case:

ahhh no. She needs to recuse herself. period.

upinak on December 12, 2011 at 11:52 AM

Good luck AZ! I hope the SC rules in your favor. That would really tick off bho and team!
L

letget on December 12, 2011 at 11:54 AM

Can’t wait to read the opinion. As a practical matter I don’t see how effective immigration controls can be implemented without the help of State law enforcement agencies. A single state police force has more officers than all of DOJ. It’s simply a matter of boots-on-the-ground.

If we’re to take immigration law seriously, the States have to get involved. SCOTUS is making a BIG decision here.

Meric1837 on December 12, 2011 at 11:55 AM

Aren’t you all wondering if the left began its campaign to have Clarence Thomas recuse himself on the Obamacare appeals because they already knew Kagan was up to her neck promoting of Obamacare?

Scriptor on December 12, 2011 at 11:57 AM

Do us proud scotus

cmsinaz on December 12, 2011 at 11:58 AM

Paul Blart will be sitting in for Mr. Kagen

SDarchitect on December 12, 2011 at 11:59 AM

Oh, and it will be interesting to see SCOTUS’s ruling on what amounts to Arizona’s enforcement of existing immigration law.

Scriptor on December 12, 2011 at 11:59 AM

Debbie Blabberidiot Schmid
Elena Kagan

Perfect illustration of the American liberal woman. No wonder they want abortions on demand. Would you want that beast to procreate?

angryed on December 12, 2011 at 12:00 PM

The only reason I’m dreading this is because of the impending crr6 v Hot Air ruling.

cajun carrot on December 12, 2011 at 12:00 PM

Aren’t you all wondering if the left began its campaign to have Clarence Thomas recuse himself on the Obamacare appeals because they already knew Kagan was up to her neck promoting of Obamacare?

Scriptor on December 12, 2011 at 11:57 AM

Can’t say I’m wondering about that at all. Thought it was pretty obvious actually.

Lost in Jersey on December 12, 2011 at 12:01 PM

When 4 “Justices” voted against the 2nd Amendment in the Heller v D.C. case we knew which ones needed to be impeached on grounds of not understanding the Constitution.

Jim50 on December 12, 2011 at 12:01 PM

The argument against the AZ law is idiotic. I don’t see how the case didn’t get laughed out of court in the first place.

Mord on December 12, 2011 at 12:04 PM

Methinks this is Kagan’s bone to the folks who want her to recuse on the ObamaCare case…from which she will NOT recuse herself.

There is no way, given the nature of emails currently disclosed thus far, Kagan will recuse herself from that case. It is the preeminent reason she was appointed to SCOTUS.

Marcus Traianus on December 12, 2011 at 12:07 PM

The Supreme Court’s test case for ObamaCare was also an overturning of the law at the appellate level, and a SCOTUS tie in that case would mean ObamaCare’s total rejection.

They overturned the mandate at the appellate level… I don’t think a tie wouldn’t completely repeal ObamaCare.

ninjapirate on December 12, 2011 at 12:07 PM

So, anyone knows what happens if the court rules 4-4? Does the lower rule stand?

I think that Kagan has recused herself is possibly a sign that it is already written in stone that AZ will win

ConservativePartyNow on December 12, 2011 at 12:08 PM

Add to this the unprecedented decision to intervene quickly in the Texas redistricting case where their decision to throw out the judicially drawn lines- really bad ones- but NOT reinstate the Legislative lines has left everything in an uproar. But the judicial lines actually made the re-election of at least two minorities (both Republicans) very difficult, while restoring districts for at least two Anglos (both Democrats). REALLY hard to accept, considering the intent of the Voting Rights Act (unless you consider the Democrat Party itself as an ‘ethnic minority’.

michaelo on December 12, 2011 at 12:10 PM

I think her recusing herself here, is more proof that she had alot to do with all legalities argued within Obama policy making. It proves she should recuse herself from the ObamaCare debate as well.

portlandon on December 12, 2011 at 12:11 PM

The only reason I’m dreading this is because of the impending crr6 v Hot Air ruling.

cajun carrot on December 12, 2011 at 12:00 PM

Count it!!!! /crap6

AH_C on December 12, 2011 at 12:12 PM

So, anyone knows what happens if the court rules 4-4? Does the lower rule stand?

I think that Kagan has recused herself is possibly a sign that it is already written in stone that AZ will win

Yes, the lower court rule would stand. I tie for them here is a win.

If anything, her recusal is a red herring demonstrating she takes “refusal seriously” and she doesn’t need to be removed from the ObamaCare hearing. The Think Progress blogpost points to that pretty hard too. I’m pretty sure a tie at the ObamaCare hearings means the mandate is gone since that’s how the appellate court ruled.

ninjapirate on December 12, 2011 at 12:15 PM

“recusal seriously”

ninjapirate on December 12, 2011 at 12:15 PM

I agree that Kagan is just building up creditability so she can vote in obamacare. though, like, Ed Morrissey indicated, i don’t know why she bothers. she could just run roughshod over us and let us know that she is doing so.

still her sensitivity and attempts to sugarcoat it are appreciated.

eliyahug on December 12, 2011 at 12:18 PM

As a TEA Party activist in Kansas, I’ve been a long-time supporter of Kris Kobach, who was a principal co-author of SB-1070 for the state of Arizona. I worked long and often in support of KK’s campaign for KS-Sec’y of State (which is an elected position in this state) in 2010. His positions and commitments on the related issues of illegal immigration and electoral-fraud/voter-security are a very large part of the reason he gets the strong support of the TEA Party all across America. In large rallies, small private meetings and serious conferences, his depth of knowledge and logical rationale are unwavering and unflagging.

SB-1070 was written from the ground up with the full expectation that it would arrive at SCOTUS, in all likelihood sooner rather than later, and here we are… All known precedents and contingencies were part of the calculus that resulted in the final bill. I am Supremely confident that SB-1070 can and will withstand all legitimate scrutiny in the highest Court. Those who feel as I do on this issue should rest easy that America could have no finer advocate when the time comes to present arguments to the Court. (A full transcript of KK’s arguments will likely be both historic and highly readable…)

All that remains to be seen is whether a sufficient number of the Justices can resist their political instincts and not go all “Kelo” by way of some tortuously contrived excuse for jurisprudence.

“Cogito, ergo TEA Party!” ~ DeepWheat

DeepWheat on December 12, 2011 at 12:22 PM

If anything, her recusal is a red herring demonstrating she takes “recusal seriously” and she doesn’t need to be removed from the ObamaCare hearing.

ninjapirate on December 12, 2011 at 12:15 PM

Exactly correct.

Abby Adams on December 12, 2011 at 12:23 PM

Aren’t you all wondering if the left began its campaign to have Clarence Thomas recuse himself on the Obamacare appeals because they already knew Kagan was up to her neck promoting of Obamacare?

Scriptor on December 12, 2011 at 11:57 AM

Yes, I certainly have considered such.

And I think that the reason Kagan hasn’t recused herself from the Obamacare issue is because to do so would be to lend credence to the fact that she lied under oath during her confirmation hearing.

She swore, “no” when asked in her hearing if she’d (been involved in Obamacare) and yet emails unearthed afterward affirm that she was, and that SHE EXPRESSED HER (ENTHUSIASTIC) SUPPORT (as in, “opinion”) about Obamacare PRIOR TO THE HEARING (wherein she swore her ‘no’).

Kagan VERY LIKELY lied in her confirmation hearing to the Supreme Court. She’s not recusing herself from the OCare S.C. hearing because she’d be caught in her lie if she did.

Congress really needs to require her to recuse herself from OCare. If they don’t, well then, nothing is to be believed.

Lourdes on December 12, 2011 at 12:24 PM

That outrageous law. This is the law Holder categoricly rejected.
Of course when pressed he did admit he reviewed it carefully but did not read it. It was 2 pages long.

seven on December 12, 2011 at 12:26 PM

If anything, her recusal is a red herring demonstrating she takes “recusal seriously” and she doesn’t need to be removed from the ObamaCare hearing.

ninjapirate on December 12, 2011 at 12:15 PM

Ding! Ding! Ding!

It’ like a senator proclaiming they voted against a bill after voting to allow cloture on it knowing it would pass.

SouthernGent on December 12, 2011 at 12:27 PM

The only reason I’m dreading this is because of the impending crr6 v Hot Air ruling.

cajun carrot on December 12, 2011 at 12:00 PM

Where IS crr6? Banished? Barred? Banned?

Long haired country boy on December 12, 2011 at 12:32 PM

Where IS crr6? Banished? Barred? Banned?

Long haired country boy on December 12, 2011 at 12:32 PM

have you never read the comments before?

*sighs*

upinak on December 12, 2011 at 12:41 PM

If polarization of the court by the Left continues apace, I see a distinct possibility of having a hung jury on every case with a Democrat defendant and at least one Democrat on jury.

Speaking of jury – a O/T question here, sorry – if Solyndra, LS, and/or F&F lead to major criminal convictions, will Obama be indicted by the civil or military prosecution?

Archivarix on December 12, 2011 at 12:46 PM

I’m actually starting to wonder if Kagan will recuse herself. Obama’s incompetent. Why would he be incompetent in everything else, but have the competence to pick a judge “he knows” won’t recuse herself?

Kagan’s going to be around Washington for a much longer time than Obama ever will be. I’m not saying she’s going to pull a Souter, but it wouldn’t surprise me if she would rather have the respect of her colleagues on the court than Obamatons. Not having a record could mean she’s some super liberal who’d never have gotten confirmed or it could mean she’s more moderate, only time will tell.

Probably wishful thinking.

cpaulus on December 12, 2011 at 12:51 PM

Gee, what are the odds of the Nutzo Ninth making a bad decision?

mojo on December 12, 2011 at 12:52 PM

not a lawyer
Wouldn’t the AL law, having been upheld at it’s first challenge and considered a slight refinement of the AZ law be the better test? If the AZ appeal gets shot down or 4-4′s back to the appellate ruling, how does that affect the AL law standing?

smitty41 on December 12, 2011 at 12:53 PM

Exactly correct.

Abby Adams on December 12, 2011 at 12:23 PM

Agreed.

The Arizona case is small fish in comparison to the Obamacare case — it involves a State supporting Federal Law, and will undoubtedly be found Constitutional using a 14th Amendment argument (the knife cuts both ways when the United States obligates States to uphold Fedaral law).

If Obamacare and its mandate for private parties to purchase private goods is found constitutional, there is no longer any refuge from Big Brother. I fear it will be found Constitutional due to Filburn v Wickard, and the Court’s loathing for abandoning stare decisis.

unclesmrgol on December 12, 2011 at 12:53 PM

Federal. Soory.

unclesmrgol on December 12, 2011 at 12:54 PM

The petition for a writ of certiorari is granted. Justice Kagan took no part in the consideration or decision of this petition.

Maybe I am reading this wrong, but it does not tell me she is going to recluse herself from hearing this case in the full court, but that she just recluse herself from hearing the petition on whether or not the court should hear the case.

JeffinSac on December 12, 2011 at 12:55 PM

YEAH! my first hot air post! finally SCOTUS will take on the immigration debate since Congress and the President refuse to…

burserker on December 12, 2011 at 12:57 PM

I read that the same way, recused from considering to take the case does not mean she will recuse herself from hearing it if accepted by the court.

If she does not recuse herself from the case proceedings, CJ Roberts should step in and demand it.

insidiator on December 12, 2011 at 1:07 PM

This is going to be one of the wildest presidential election years ever.

ButterflyDragon on December 12, 2011 at 1:08 PM

The argument against the AZ law is idiotic. I don’t see how the case didn’t get laughed out of court in the first place.

Mord on December 12, 2011 at 12:04 PM

I agree. It has nothing to do with the regulation of immigration policy..it has to do with enforcement of exiting laws and with a states right to enforce their legal standards and laws.

I wouldn’t count on common sense playing much of a part in the ruling. We are no longer a nation of laws so much as a nation of lawyers. Abstract legal stylings of the over educated have already shifted the identity of the citizens and their rights to the delegated responsibilities of a “subject” to a ruler.

Mimzey on December 12, 2011 at 1:13 PM

Maybe it’s just the cynic in me, but I suspect she’s been recusing herself in these other cases just to avoid doing so with ObamaCare. It’s unfathomable to me that someone who served as solicitor general wouldn’t have taken part in discussions regarding the admin’s signature achievement, but there’s no way she recuses herself from that one.

changer1701 on December 12, 2011 at 1:15 PM

This is going to be one of the wildest presidential election years ever.

ButterflyDragon on December 12, 2011 at 1:08 PM

yeah, and I have a huge pit in my stomach about it.

upinak on December 12, 2011 at 1:17 PM

Excellent!

As for Think Progress and Justice Kagan: They should remove Think from their title as much as she should recuse herself from Obamacare. Gee, what? Is she collecting good behavior points and get out of jail free cards like the rest of the leftistproglibtards? Just because she does the right thing in dozens of instances doesn’t add up to a pass go collect $200 move on Obamacare, which just happens to be, oh, I dunno, probably the most important, impactful case in history so far that the Supremes will hear.

stukinIL4now on December 12, 2011 at 1:18 PM

If the Arizona law is upheld then Pres. Obama can run on “those terrible Republicans hate Latinos” and point happily at the law. If the Court deadlocks, then it’s probably a wash from his point of view.

Remember, the Arizona law is not his “signature legislative achievement”. He can win or lose it with little personal involvement, so it doesn’t really matter to him if Kagan is there or not. For her to recuse would be purely political at this point, as seen in the Think Progress bit.

But Obamacare must survive the challenge, or Pres. Obama has nothing to run on but “it’s someone else’s fault”. So no, Kagan will not recuse there because the President has too much at stake.

The only way I can imagine Kagan not “judging” Obamacare (it’s hardly “judging” when your mind is already made up, is it?) would be if more emails and/or other documentation come to light and she’s facing investigation of some kind.

Sue Anne on December 12, 2011 at 1:23 PM

Obama will make hay out of any decision.

The media will help him. May they suffocate from what they eat, what they also dwell in.

They are derelict in their duties and should spontaneously combust every time they don’t do their jobs.

Schadenfreude on December 12, 2011 at 1:29 PM

G O O D !

KOOLAID2 on December 12, 2011 at 1:30 PM

Maybe Kagan doesn’t need to be forced to recuse herself from the Obamacare decision? Maybe she has the moral character to do it herself. This is certainly a good sign though.

vegconservative on December 12, 2011 at 1:40 PM

yeah, and I have a huge pit in my stomach about it.

upinak on December 12, 2011 at 1:17 PM

Have faith.

I have no doubt the majority of Americans are still opposed to socialism.

ButterflyDragon on December 12, 2011 at 1:45 PM

yeah, and I have a huge pit in my stomach about it.

upinak on December 12, 2011 at 1:17 PM

I feel your pain. My medicine is to go back and look at the Nov 2010 election results. And things have only worsened since. ABO in a landslide.

hillsoftx on December 12, 2011 at 1:51 PM

I have no doubt the majority of Americans are still opposed to socialism.

ButterflyDragon on December 12, 2011 at 1:45 PM

Probably true…but not important.
The important question is this: Are a majority of Americans willing to fight socialism even after being purposely impoverished and finding themselves in need of socialistic services?
Who will they side with then?

Mimzey on December 12, 2011 at 2:07 PM

I agree with JeffinSac…

The petition for a writ of certiorari is granted. Justice Kagan took no part in the consideration or decision of this petition.

Read the article more carefully. She recused herself from the decision TO TAKE THE CASE. It does not mean she will recuse herself from weighing in on the decision when the case is heard.

Oh my…a possibility?

StarLady on December 12, 2011 at 2:42 PM

You couldn’t seriously enforce anti illegal immigrant measures without something like SB1070 enforced. Do so.

The Nerve on December 12, 2011 at 4:19 PM

have you never read the comments before?

*sighs*

upinak

So, missing a particular comment or comments means one has never read any of the comments? I’m guessing you didn’t think that answer through very well.

xblade on December 12, 2011 at 4:36 PM

When are people going to realize that illegal immigration allows modern day slavery. From the Coyotes who rape women they bring over the border then hang their panties on the tree.

To the clothing manufacturer who had 30 women locked in a romm 24 hours a day with only 1 toilet and a sink.

To the employees abused by their bosses but to afraid to go to the police.

In addition to the drug lords importing violence to anyone near the border. This is a human rights issue. you would think the Dems would be all for it. Huh i Guess the Dems hate brown people.

huskerthom on December 12, 2011 at 10:36 PM

I’ve understood the law “enables” or “authorizes” the police to check and have been following the typical Demonrat spinsters attempt to portray the law as “requiring” the police to check

One interpretation could be painted as a witch hunt, the other seems more a restoration of common sense

Not-a-Marxist on December 13, 2011 at 7:08 AM