Arizona's Immigration Law and the High Court


SCOTUSblog's Lyle Denniston has a detailed summary of yesterday's Supreme Court oral arguments in Chamber of Commerce v. Whiting, the case dealing with Arizona's harsh law penalizing employers that hire illegal aliens. As Denniston notes, the Arizona law appears likely to survive, due in part to Justice Elena Kagan recusing herself, but that win will probably occur in a narrow ruling that postpones the real clash over immigration policy until some future date:

From questions and comments, it appeared that only one of the eight Justices was a bit uncertain about how to react to the Arizona law — Anthony M. Kennedy.  What Kennedy said overall, though, seemed to suggest that he was more skeptical than not of the law's validity.  From what others said, however, Arizona may well win, one way or another.

Were Kennedy to vote to uphold the law, despite apparent reservations, the result probably would be a 5-3 win for Arizona.  But if he voted to strike down the law, there seemed likely to be only three other votes to go with his, making the vote 4-4 — but Arizona still would win, because such a split vote would summarily affirm a Ninth Circuit Court decision that upheld the state's worker control law.  Evenly divided results, however, do not set a precedent beyond the individual case, so the result in the future, if all nine Justices took part, might well come out differently: Justice Kagan's vote could be the swing vote.  And other test cases are on the way — including one involving an even broader Arizona anti-immigration law, and a set of alien restrictions adopted by the local government in Hazleton, Pa.