STEVE INSKEEP, HOST:
A case before the Supreme Court today turns on who has the power to regulate immigration.
RENEE MONTAGNE, HOST:
The court will consider a challenge to Arizona's law that targets illegal immigrants, a law that's become a model for other states.
INSKEEP: A model even though an appeals court has blocked key provisions of that state law. The court said the law encroaches on federal power and now comes the highest court's turn, as NPR's Nina Totenberg reports.
NINA TOTENBERG, BYLINE: Historically, the federal government has the power to regulate all immigration questions, and historically the states have the power to police illegal activities that threaten health and safety within their own borders. Arizona's law pits these two legal concepts against each other.
In recent years, Arizona has become the eye of the political storm over immigration. With a 370 mile border with Mexico, the state contends that it bears a disproportionate burden of illegal immigration, due in large part to what it calls lax enforcement by the federal government.
The state's brief paints a grim and frightening picture of life in Arizona: human traffickers more heavily armed than border patrol agents, Mexican drug cartels penetrating as far as 80 miles beyond the border, threatening police, invading homes, and kidnapping people. Indeed, the situation is so bad that large tracts of desert that are designated national parkland have posted signs warning: Danger, active drug and human smuggling area, visitors may encounter armed criminals.
Arizona's Governor Jan Brewer, in signing SB 1070 into law, alluded to all that.
GOVERNOR JAN BREWER: We in Arizona have been more than patient waiting for Washington to act. But decades of federal inaction and misguided policy have created a dangerous and unacceptable situation.
TOTENBERG: The Obama administration counters that the federal government has increased the number of border agents by 40 percent in Arizona over the last five years, supplemented by 40 interdiction aircraft and 306 miles of new border fence.
Indeed, critics of SB 1070 point out that even as the state was passing its tough new law, illegal border crossings in the state were down dramatically, to numbers not seen since the 1970s. Four specific provisions of the Arizona law are before the Supreme Court today. The state defends all of them as written to mirror federal law.
The most notable are the so-called show-me-your-papers provisions. They require, among other things, that state and local law enforcement officers, upon reasonable suspicion, detain anyone stopped or arrested for any reason, no matter how minor, until the immigration status of that person is determined.
Lawyer Paul Clement, who represents the state, contends such stops are an example of cooperation, not conflict, between federal and state authorities.
PAUL CLEMENT: This law is consciously designed to complement the federal law and not replace it.
TOTENBERG: Not so, says James Ziglar, who served as head of the immigration service during the administration of President George W. Bush.
JAMES ZIGLAR: They're not cooperating. They're confronting the federal system by basically forcing everybody who's in illegal status into the federal process. And that's a flood that will literally cause the Feds to be unable to respond to almost anything.
TOTENBERG: Indeed, the federal government says flatly there's no way to have 100 percent enforcement of the federal immigration laws. There just aren't enough resources to hold everyone suspected of being in the country illegally and provide for hearings prior to deportation.
So the federal government has established priorities to deal first with dangerous criminals, felons, suspected terrorists, and the like. It would be impossible to carry out these priorities, the government says, if the system is glutted with requests for information on every minor traffic offender who is suspected for some reason of being in the country illegally.
Furthermore, says former commissioner Ziglar, the immigration data system does not fully reflect the real status of many people. Prosecutors, for example, allow witnesses to stay when they're needed to bust drug or human trafficking rings. Also, the federal government does not deport refugees from certain countries - for example, Syria right now, or China at the time of Tiananmen Square. Nor does it deport people while they are seeking asylum from persecution.
Cecellia Wang of the ACLU notes that a person seeking asylum has no proof of legality until final approval is granted.
CECELLIA WANG: And if the Arizona police officer called the federal authorities to find out the status of the person, they would receive a response that the person is in removal proceedings.
TOTENBERG: Arizona's Paul Clement replies that whatever the problems, federal law mandates responsiveness and provides for a center that's manned 24 hours a day to do that.
CLEMENT: Congress has been incredibly specific that the federal government shall respond whenever the state and local governments ask for that kind of information.
TOTENBERG: Former State Senator Russell Pearce, who sponsored Arizona's law, adds that the whole point is what the statute refers to as enforcement through attrition. Or put another way, if the going gets tough enough for illegal immigrants, they'll leave. It's like Disneyland, he says.
RUSSELL PEARCE: You want the crowd to go home, you've got to turn off the lights.
WANG: Arizona legislators are assuming there's an on/off switch, you're either legal or you're illegal, when in fact the system Congress has created really accounts for what actually happens in the real world.
TOTENBERG: The ACLU's Wang says that in the real world the immigration status of non-citizens is often complex and fluid, and until the status is finalized, the individual will be listed as in deportation proceedings. Even many law enforcement officers in Arizona worry that the state's new law will lead to racial profiling, since it provides stiff fines on law enforcement officers who fail to detain suspected illegal immigrants. Here's Tucson Sheriff Clarence Dupnik.
SHERIFF CLARENCE DUPNIK: You know, that law coerces us to profile people, and we're going to get sued on both sides. One from the people that don't think we're enforcing the law and one from the people that say they're being profiled.
TOTENBERG: Arizona's law, of course, has been blocked so far by the federal courts, but a similar law in Alabama has gone into effect and has led to some embarrassing incidents, like the arrest of a German Mercedes executive when he couldn't produce proof that he was legally in the country.
Also at issue in today's case are two other provisions of the law. One makes it a state crime, punishable by a mandatory jail sentence, for an immigrant to fail to register under federal law. And another provision makes it a state crime to work or try to find work.
Federal law makes it a crime for businesses to hire illegal immigrants, but not for the employees to work. The state contends that it's free to legislate against workers because the federal law is silent on the subject. But the federal government counters that state law unconstitutionally interferes with Congress's decision not to impose criminal penalties on illegal workers.
The court that will hear today's case will be just eight justices strong, with Justice Elena Kagan recused, as she was in another immigration case last year. The court in that case upheld a different Arizona enforcement law by a 5-3 vote. So the tea leaf readers are forecasting that the justices will uphold some or all of SB 1070.
Nina Totenberg, NPR News, Washington.
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