Another landmark ruling in the offing
on Dec 12, 2011 at 11:09 am
NOTE TO READERS: Final updates made at 11:51 a.m.
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Adding further to the historic rank of the Supreme Court’s current Term, the Justices on Monday took on the searing constitutional — and political — controversy over state power to strictly limit the way undocumented immigrants live their lives in the U.S. Along with the politics-saturated but deeply consequential constitutional disputes over the new federal health care law and the role of federal courts in drawing up new election districts to protect minority voters’ rights, the Term that will run through late June is assured of being one of the Court’s most significant single years ever. The federal government is involved in all three disputes, and its main adversary in each is the same: prominent Washington lawyer and former U.S. Solicitor General Paul D. Clement, who is also battling the government in lower courts over same-sex marriage. The marriage issue, though, has only the slimmest of chances of getting to the Court this Term in any form.
Given the Court’s usual scheduling, the decisions in the three controversies already set for review will be issued near the end of the Term, dropping them into the middle of a presidential and congressional election campaign in which one of the primary issues is the division of power between national and state governments, with the federal judiciary as the umpire among them. Because the President to be elected next November may have a chance to name one or more new Justices to the Court, the future of the nation’s highest court may also be on the line in those campaigns, and what the Justices decide in the three cases may well help shape voters’ reactions.
The Arizona case puts before eight of the Justices — former U.S. Solicitor General and now Justice Elena Kagan will not take part — that state’s highly controversial bill, known popularly as “S.B. 1070.” That measure set a pattern among a number of states that have been growing increasingly impatient with what they consider to be the federal government’s lax enforcement of immigration controls, and the resulting harm that they believe illegal immigrants are doing to the quality of life for their citizens and legal residents. The Arizona measure, and one in Alabama that goes even further, were passed by state legislatures with the specific intent of making life so difficult for undocumented aliens that they would choose to leave the state. Other states are also passing similar measures.
Arizona’s governor, Janice Brewer, in taking the fate of S.B. 1070 on to the Supreme Court, is portraying the case as a major test of the sovereignty of the states to make their own social policies under traditional “police power” principles. The federal government, which tried unsuccessfully to persuade the Court not to get involved in the case at this point, is treating the case as a test of whether states may adopt their own immigration policies that frustrate specific goals of federal policy.
With Justice Kagan not taking part, presumably because she had something to do with the issue in her former role in the Obama Administration Justice Department, there is the possibility that the eight participating Justices will wind up split 4-4 in the case. That would have the effect of simply upholding a Ninth Circuit Court decision, but without opinion and without setting a nationwide precedent. The practical effect of that would be that Arizona could not enforce four key provisions of S.B. 1070, blocked by both the Ninth Circuit and, earlier, by a federal District judge in Arizona.
The four provisions at issue are:
** A requirement that police in making any stop or arrest to try to determine the individual’s legal right to be in the U.S., if the officer has a “reasonable suspicion” of illegality. If arrested, the individual cannot be released until his legal status is verified by the federal government. That is the law’s Section 2(B).
** A provision making it a crime under state law for an individual to intentionally fail to obtain and carry legal immigrant papers with him while in Arizona (Section 3).
** A provision making it a misdemeanor for an undocumented immigrant to apply for a job, publicly solicit a job, or actually work in Arizona (Section 5[C]).
** And, a provision that allows police to arrest without a warrant any person for whom the officer has “probable cause to believe” that the individual has committed any crime, anywhere, that would make that individual subject to being deported (Section 6).
In urging Supreme Court review, the state’s petition (Arizona v. United States, docket 11-182) contended that the bar to enforcement of those provisions “casts constitutional doubt on dozens of statutes enacted by other states.” The petition sought to persuade the Justices that the state was making only modest efforts to join in cooperation with the federal government to enforce existing policy against illegal immigration. The Obama Administration urged the Court to deny review, arguing that it was premature for the Court to get involved before other federal appeals courts have ruled on such state attempts to adopt similar laws. The Administration contended that what Arizona has done is not to engage in a cooperative endeavor with the federal government, but to have its own immigration control policies — a field that the federal government contends is reserved to the national government. And the government argued that the state is using criminal prosecution in a field where the federal government has generally opted for civil remedies.
The Arizona case was one of three new cases the Justices agreed on Monday to review.
It also agreed to decide whether private citizens or groups may ever sue to stop the federal government from buying lands for the use of Indian tribes. The case involves a purchase by the government of a 147-acre tract near the rural town of Bradley, Mich., to be used by the tribe as the site of a gambling casino to provide revenues for the tribe’s operation. The government and the tribe filed separate petitions to review a lower court ruling that a Bradley-area private citizen may go ahead with a lawsuit seeking to challenge the transaction. The government and the tribe contend that all such lawsuits are barred by the federal Quiet Title Act. The new cases are Match-E-Be-Nash-She-Wish Band v. Patchak (11-246) and Salazar v. Patchak (11-247). The cases will be heard together in one hour of oral argument.
The third dispute the Justices voted to hear tests whether lenders who have their loans secured are entitled to bid to reclaim the security when a bankruptcy court plans to put it up for sale. Lower courts are split on the standards that govern such sales of collateral. That case is Radlax Gateway Hotel, et al., v. Amalgamated Bank (11-166).
In an order in the pending cases over the constitutionality of the new federal health care law, the Justices refused without comment to allow a conservative advocacy group, Freedom Watch, to join in the cases in order to try to get the Court to compel the Obama Administration to release publicly internal documents showing how the Administration negotiated with private groups in putting together the health care legislation. Freedom Watch has a lawsuit pending on the issue in a federal District Court in Washington.
The Justices invited the Solicitor General’s office to provide the Court with the federal government’s views on whether timber companies must get a federal permit before they may collect and pour into nearby rivers and streams the runoff from rains on logging roads in forests. The Environmental Protection Agency has previously taken the position that a permit is not needed for that kind of stormwater runoff, but the Ninth Circuit Court has disagreed. The issue arises in two cases: Decker v. Northwest Environmental Defense Center (11-338) and Georgia-Pacific West v. Northwest Environmental Defense Center (11-347). Justice Stephen G. Breyer is recused in these cases.
The Court also asked for the federal government’s views on the constitutionality of state and local laws in Hawaii that provides a tax exemption from real estate taxes, when only persons classified as “native peoples” of Hawaii are eligible for the exemption. That special treatment is challenged by non-native homeowners as a form of racial discrimination. The case is Corboy, et al., v. Louie, Attorney General of Hawaii (11-336).
There is no deadline for the Solicitor General to respond to these invitations. In any event, the responses are not likely to be sent in time for the Court to take further action on those cases during the current Term.
The Court released the second decision of the Term in an argued case, unanimously overturning a six-year-old policy of federal immigration officials that gave permanent resident aliens who committed crimes less chance of avoiding deportation than newly arrived non-aliens would have had before they were barred from admission. In an opinion by Justice Kagan in Judulang v. Holder (10-694), the Court said that the government need not treat those facing deportation exactly equally with those facing denial of admission, but it found that the current policy dating from 2005 was arbitrary, because it based comparisons between the two situations on arbitrary differences in what crimes are covered for deportees and for facing exclusion. At several points in her 21-page opinion, Kagan wrote that the policy was no less arbitrary than would have been a mere flipping of a coin to decide who among permanent resident aliens would be entitled to seek relief from deportation. The decision apparently will force immigration officials to focus more closely on the specific details of each individual’s case for relief from deportation.
In a final action on Monday, the Supreme Court — in a summary ruling that made no new law — reminded lower federal courts that they should not second-guess state courts when the state tribunals have ruled that a witness simply cannot be located and thus is not available for a second trial, so that the witness’s testimony at a first trial can be admitted at a second proceeding without violating the accused individual’s Sixth Amendment right to confront adverse witnesses. The seven-page, unsigned opinion came in an Illinois sexual assault case, Hardy v. Cross (11-74).
