IRLI Files Supreme Court Brief on Behalf of US Congress Members Supporting Arizona SB 1070

September 18, 2011

On September 12, 2011, IRLI, partnering with the American Center for Law and Justice, filed a brief on behalf of four United States Senators and 55 United States Congressmen urging the United States Supreme Court to hear the case of United States v. Arizona. The brief is attached here.

IRLI previously joined with ACLJ in filing briefs on behalf of members of Congress supporting Arizona in both the Ninth Circuit and in the Arizona District Court.This case involves the Obama Administration’s challenge to Arizona’s “Support Our Law Enforcement and Safe Neighborhoods Act,” known worldwide as “SB 1070.” SB 1070 made the “attrition through enforcement” approach to illegal immigration control official state policy. SB 1070 takes measured steps to ensure that Arizona police cooperate with the federal government in the enforcement of immigration laws, and discourages illegal immigration into the State of Arizona.

Key SB 1070 provisions included section 2, which requires officers to verify the immigration status of individuals who the officer has lawfully stopped and has reasonable suspicion to believe is an illegal alien. Section 3 creates a state penalty for aliens who violate federal alien registration laws. Section 5(C) of SB 1070 prohibits illegal aliens who lack work authorization from applying for or performing work in Arizona. Section 6 grants Arizona peace officers the authority to arrest aliens on probable cause for committing “any public offense that makes the person removable from the United States.”

Garrett Roe, IRLI staff attorney and co-counsel on the brief, notes that it focuses on two primary issues. First, it is Congress which has plenary authority in creating immigration laws, not the Executive Branch. Second, Arizona’s law is not preempted by any laws passed by Congress, but is constitutionally consistent with the intent of Congress that states to assist in the enforcement of immigration laws. For instance, the IRLI-ACLJ brief points out that federal law requires the DHS to respond to immigration status inquiries by state and local officers. It also argues that Congress prohibits DHS from restricting the State’s ability to make those inquiries. Roe also explains that Congress expressly reserved state authority to assist the federal government in immigration enforcement and that formal agreements between the States and federal government are unnecessary.

The Obama Administration has until October 12, 2011 to respond to the Petition filed by Arizona. Arizona will then have until October 26, 2011 to submit a Reply to the Obama Administration’s Response. The Court will likely issue a decision on whether to grant certiorari and review this case at its November 14, 2011.

If the Supreme Court were to deny certiorari, there remains a growing list of appeals court decisionsreviewing IRLI-style omnibus enforcement legislation from other circuits that would be prime candidates to decide the same key constitutional questions, from states such as Indiana, Alabama or Georgia.