Today, the United States Supreme Court granted the petition filed by the state of Arizona to hear the case concerning the state’s immigration law passed in April, 2010. (See: page 2, case number 11-182 of the link). This was an appeal from the Ninth Circuit Court of Appeal’s decision finding many of the provisions of Arizona’s law unenforceable.
Justice Kagan did not participate in the decision to hear the case, and, presumably, will not participate in deciding the case. She was Solicitor General of the United States when the decision was made by the federal government to file suit to block the Arizona law’s implementation. Of note, if the decision is 4-4, the opinion of the Ninth Circuit will stand.
The question presented is quite simple in legal jargon, but, perhaps, not so simple in its resolution. The issue involves what is known as the “pre-emption” doctrine. In simple English that means that if the federal government is given the power under the Constitution to regulate “something”, no state can enact legislation in that area.
Here is where it gets complicated. As an example, obviously, the federal government regulates illegal drug trafficking, as do the states, and the federal government does not try to stop the implementation of the states’ laws that do not conflict with federal law. On the immigration front, however, this administration has decided that only it, not the states, can deal with illegal immigration, even though there is nothing in the Arizona law that conflicts with federal law.
Arizona has responded by saying, yes, but you are not enforcing the law, so we will.
No date for oral argument has been set, but it will occur this spring, and a decision, much like that in Obamacare, will most likely be made before the current term of the Court ends in June, 2012.