Supreme Court Hears Challenge to Arizona Immigration Law, Kagan Recuses


The Supreme Court has announced that it will hear the case of Arizona’s immigration law, whose implementation was blocked by a Justice Department lawsuit and a decision by the 9th Circuit Court of Appeals.  Arizona is asking the Supreme Court to overturn this decision, as reported by the Washington Post:

Arizona told the justices in asking them to accept the case that the border state was feeling the brunt of a “broken” immigration system, and that its law was intended to cooperate with federal laws to control illegal immigration, not to usurp the federal government’s power.

But when Arizona Gov. Jan Brewer (R) signed S.B. 1070 in April 2010, she described it as a way for her state to “solve a crisis we did not create and the federal government has refused to fix.”

The appeals court blocked four elements of the new law: making it a state crime to be in the country illegally and failing to register with the federal government; making it illegal to seek work or working when not authorized; requiring state and local officers to try to determine the status of someone arrested, stopped or detained if they believe the individual might be in the country unlawfully; and allowing warrantless arrest of anyone who they have probable cause to believe might have violated laws that would make them deportable under federal law.

(Emphasis mine.)  At the heart of the Justice Department suit lies the contention that Arizona is attempting to usurp federal powers, rather than “cooperate” with them.  DOJ has filed similar suits against Alabama, South Carolina, and Utah.  The Supreme Court could hear the Arizona case as early as April.

Interestingly, Supreme Court Justice Elena Kagan has recused herself from the case, “presumably because she worked on the issue during her time as Obama’s Solicitor General,” as the Post speculates.  This could have ramifications for her recusal when ObamaCare comes before the Supreme Court, as Kagan’s office also handled preparing its legal defense. 

The Administration has taken pains to claim that Kagan was somehow completely insulated from the ObamaCare legal defense project when she was Solicitor General, but that hair might become harder to split, given that she apparently sees grounds for staying out of the Arizona immigration case.  Are we supposed to believe ObamaCare was the one and only thing she was kept distant from, to preserve her viability for accepting a Supreme Court position that didn’t exist yet?

Update: There seems to be some confusion about whether Kagan has fully recused herself from the Arizona immigration case, or merely from the decision over whether or not to hear it.  Every report I’ve read, as of this writing, says she’s recusing herself from the case entirely.  If news to the contrary is released, I’ll update accordingly.  It seems rather odd that she would only recuse herself from the decision to grant standing to Arizona, but then participate in the case itself.