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

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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David Strom 10:01 AM on January 30, 2023