Supreme Court Accepts SB 1070 Case

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ASU Law Professor Paul Bender discusses the U.S. Supreme Court’s decision to take a case challenging the constitutionality of Arizona’s immigration law.

Jose Cardenas: Good evening and welcome to "Horizon." I'm José Cárdenas, filling in for Ted Simons. The United States Supreme Court has agreed to hear a case involving Arizona's S.B. 1070 immigration enforcement law. Here to tell us what the justices will be looking at is ASU law professor Paul bender. Welcome to "Horizon."

Paul Bender: Nice to be here, José.

Jose Cardenas: What were they thinking when they decided to get take the case. Only a two-line decision that they're going to do that. But what are the considerations?

Paul Bender: They say the consideration is the importance of the case. The national importance of the case. Not whether the decision blows right or wrong. But how important it is to them to clarify the issue for the whole country. But, in fact, whether they think the decision is right or wrong probably has something to do with it -- you're more likely to take a case you think was wrongly decided than one that was correctly decided.

Jose Cardenas: How many justices does it take?

Paul Bender: Four.

Jose Cardenas: It's not necessarily an indication of how the court rules but usually there's a interest.

Paul Bender: If three justices really want to take it, there are a lot of justices who will say okay, if three people really wanna, I'll make the 4th vote because three people is enough to do it. So you can't tell from this, you certainly don't know there's a majority that want to reverse it. But I think statistically, the chances are they reverse more cases than they affirm.

Jose Cardenas: When they take one.

Paul Bender: When they take one.

Jose Cardenas: I do want to talk about some of the underlying issues but before we do that some of the logistics. Can we expect to have oral arguments?

Paul Bender: One oral argument I think of almost certainly in April. Right now, they're take can the cases they're going to hear at the end of the term. The last oral argument session is the last two weeks of April and that's when I think the argument will be. The argument of the healthcare case they took a few weeks ago might be in March. Cases after the first of the year tend to not get argued. But this will be argued this April and means it will be decided before the end of June when they recess for the summer. They virtually always decide a case when it's argued during a term. Very rarely they will set it for rearguments. So the chances are 99 out of 100 that the case will be decided by the end of June.

Jose Cardenas: Which means before the election?

Paul Bender: Yes.

Jose Cardenas: And you made reference to the healthcare cases. There was mention in the media, those were cases, the Obama administration wanted the court to take to get it out of the way perhaps a different feeling with respect to the immigration issue?

Paul Bender: The administration won this case in the Ninth Circuit, the Ninth Circuit agreed with the United States that the statute was a threat to the efficient enforcement of federal immigration laws and that's the issue in this case, the issue in this case is whether this state law interferes with federal immigration law, or federal immigration policy and the United States came to the Ninth Circuit and said, yeah, it does interfere with the way we want to administer the law and the Ninth Circuit agreed with that. So it's the question before the Supreme Court. And I think it comes up -- that's why I wasn't sure the clerk was going to take this. The statute had not been enforced in Arizona and a lot of the reason why the federal government and other people opposed to the law are opposed is because they think something is going to happen when the law goes into effect. The federal government thinks that it will mess up federal immigration law and be burdened by all of these inquiries and people who were legal maybe -- the United States will be embarrassed some who are legal immigrants are arrested by the county sheriff and the people who don't like the law because of racial profiling, depends on speculation what will happen and one of the results that I think is possible in this case, the court might say to the Ninth Circuit, you should have waited. This is a premature challenge. You're challenging on its face, rather than how it's administered and you oughta wait to see since you're speculating, wait to see what happens.

Jose Cardenas: And there was some sense of that in the oral argument before the 9th circuit, the judge who was considered a liberal appointee by the Clinton administration, telling the government, you're making the toughest challenge you can make. -- a challenge where there's no circumstances where this would be lawful and yet the decision did come down in favor of the government.

Paul Bender: That's right. That's a vulnerable part of the government's case, it's a facial challenge and the reasons they give are largely speculative. Judge Noonan on the Ninth Circuit in concurring with the majority, gave a reason that I think is not vulnerable to that prematurity argument. He said it doesn't matter what happens, this statute is unconstitutional because the purpose is unconstitutional. Here's a state that overtly, clearly, admittedly is trying to administer federal immigration law. It's trying to say and decide who can stay in the country and who can't. We'll administer the law. And he says the states can't do that.

Jose Cardenas: How much significance do you
think it will have, it was judge Noonan making these statements, a Reagan appointee, considered conservative. Will that impact the final decision by the U.S. Supreme Court?

Paul Bender: I thought it might encourage them not to take the case. He wrote a good opinion and he's someone they respect. Very conservative. But I think now that they've taken the case, the Supreme Court doesn't care very much what other people think once they take the case. It's rare you'll see them say, well, judge X below says -- and we respect him and we'll go along with what he says said. These are people who a quite independent minded.

Jose Cardenas: So one possible result, maybe the more likely result, the speak will say we're not -- the Supreme Court will say we're not making a decision on whether it's good or bad. But sending it back to have facts developed to see how it's applied.

Paul Bender: Actually they can't make a definitive ruling about whether it's good or bad. Even if they reverse and say on the face, the statute is constitutional. That would still leave open the fact it might as applied be unconstitutional. Even if they rule in the state's favor, that's not going to be the end of the case because when the statute goes into effect, if the things that the federal government is saying will happen happen, and if the things that the people who are complaining about racial profiling say will happen happens, that's a grounds to challenge the statute, as applied rather than on the face.

Jose Cardenas: So we'll have a lot more to talk about, Paul Bender, Thanks for joining us on "Horizon."

Paul Bender: Law Professor,Arizona State University;

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