Will the Supreme Court Uphold Arizona's Immigration Law?

The Supreme Court announced yesterday that it will arguments in the case of Arizona v. United States (with Justice Elena Kagan recused), which deals with the state's notorious "papers please" law, S.B. 1070, which, among other things, requires police officers to "make a reasonable attempt" to determine the immigration status of anyone they encounter through "any lawful stop, detention, or arrest." More specifically, however, this is a federalism case, and the question is whether federal immigration law preempts Arizona's controversial measures.

The Supreme Court considered a very similar question last term in Chamber of Commerce v. Whiting (2011). In that case, the Court considered whether federal law preempted the Legal Arizona Workers Act, dubbed the "business death penalty" by opponents, which required Arizona employers to verify the immigration status of their workers through E-Verify. In a divided ruling (with Kagan recused), the Court upheld Arizona's actions. These two immigration laws are not identical, of course, but the Court's decision in Whiting is not promising for opponents of S.B. 1070.