During oral arguments before eight Justices (Justice Elena Kagan recused herself from this case), it became clear that a majority of the Justices seem to believe that Arizona has a legitimate role in the enforcement of laws designed to protect its citizens and borders.
In the run-up to today’s arguments, there’s been much written and said about how the Arizona immigration law is unconstitutional – that a provision that requires state law enforcement officials to verify a person’s legal status when they’re stopped on suspicion of committing a separate offense is somehow discriminatory and unconstitutional.
But at the outset, the Chief Justice asked the Solicitor General if Arizona’s S.B. 1070 involves racial or ethnic profiling. The government repeatedly responded: “No, it does not.” The fact that the government conceded that the law does not involve racial or ethnic profiling is very significant because it undercuts an argument that’s been repeatedly used to challenge the immigration measure.
In fact, there was skepticism from several Justices about the Solicitor General’s argument that it was not appropriate for Arizona to act to protect its citizens and border, especially since the federal government has failed to do so. “You can see it’s not selling very well,” Justice Sonia Sotomayor told the government’s attorney. She told him that she was “terribly confused” by his arguments.
In a debate today on FOX News, I told Megyn Kelly that I am optimistic that the Arizona law will be upheld by a majority of the high court.
This case will have dramatic ramifications especially since many other states are standing by to see how this plays out before they move forward with laws to protect their citizens.
We will be watching this case very closely, too. We represent 57 members of Congress and more than 65,000 Americans in an amicus brief filed with the high court in support of the Arizona measure. Most Americans believe the high court should vote to uphold the AZ law.
With Justice Kagan not participating in this case because she worked on the issue as U.S. Solicitor General, it will take five votes to overturn the decision of the federal appeals court and permit the Arizona law to stand. As I have said many times, it’s always risky to predict the outcome of a case based on oral arguments. But, after today, it does not appear a majority of the court is prepared to reject the Arizona measure. In fact, it appears key provisions of the law are likely to be upheld as constitutional, as we have argued in our brief.
A decision will come at the end of the term, probably at the end of June.