The U.S. Supreme Court (with just eight justices sitting) has held oral argument on the U.S. Department of Justice’s challenge to Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act (“S.B. 1070”) in Arizona v. U.S., No. 11-182. Justice Elena Kagan is not participating in the case because she was the Solicitor General and involved with the DOJ’s initial challenge to the Act.

The DOJ’s lawsuit challenges the following four key provisions of S.B. 1070:

• A provision that makes it a crime for an occupant of a car stopped on a street to hire and pick up (or attempt to hire and pick up) passengers for a different location if the vehicle blocks or impedes the normal movement of traffic.

• A requirement that law enforcement officers check a person’s immigration status while enforcing other laws if "reasonable suspicion" exists that the person is in the U.S. illegally.

• A provision authorizing police to arrest immigrants without a warrant where "probable cause" exists that they committed any public offense making them removable from the country.

• A section making it a state crime for "unauthorized immigrants" to fail to carry registration papers and other government-issued identification.

The Ninth Circuit of Appeals sided with the DOJ and affirmed an Arizona federal district court’s decision to block enforcement of these provisions days before they were set to go into effect.

The Justices spent a significant portion of the 70-minute oral argument questioning the Solicitor General on the DOJ’s position that the statute is preempted by federal law. One of Justice Antonin Scalia’s quips may tip the direction of the Court: "If, in fact, somebody who does not belong in this country is in Arizona, Arizona has no power? What does sovereignty mean if it does not include the ability to defend your borders?"

This is the second time in two years that the Court has been asked to decide the validity of an Arizona immigration statute. In May 2011, it upheld the Legal Arizona Workers Act, which requires Arizona employers use E-Verify for new employees and imposes significant sanctions on employers that knowingly or intentionally hire unauthorized workers.

A ruling is expected sometime in early summer. If the Court splits 4-4, the challenged provisions of S.B. 1070 will not take effect; however, the constitutional issues facing other recently enacted state immigration statutes throughout the U.S. may go unanswered for the time being.

Jackson Lewis will continue to follow this case.