Or, at a minimum, the provision requiring state law enforcement officials to determine immigration status, which may be upheld unanimously:
Justices across the ideological spectrum appeared inclined to uphold a controversial part of Arizona’s aggressive 2010 immigration law, based on their questions on Wednesday at a Supreme Court argument.
“You can see it’s not selling very well,” Justice Sonia Sotomayor, a member of the court’s liberal wing and its first Hispanic justice, told Solicitor General Donald B. Verrilli Jr., referring to a central part of his argument.
Mr. Verrilli, representing the federal government, had urged the court to strike down part of the law requiring state law enforcement officials to determine the immigration status of anyone they stop if the officials have reason to believe that the person might be an illegal immigrant.
“Why don’t you try to come up with something else?” Justice Sotomayor asked Mr. Verrilli.
It was harder to read the court’s attitude toward the three other provisions of the law at issue in the case, including ones that make it a crime for illegal immigrants to work or to fail to register with federal authorities. The court’s ruling, expected by June, may thus be a split decision that upholds parts of the law and strikes down others.
Even if the Court upholds the law this time, it would presumably leave the possibility of an as-applied argument that the law is interfering with federal enforcement powers open, as well as an equal protection challenge (not that one could like the odds of either.)
This case is in also the latest installment of Antonin Scalia, buffoonish hack:
With Justice Antonin Scalia pushing the radical idea that the Constitution gives states clear authority to close their borders entirely to immigrants without a legal right to be in the U.S., seven other Justices on Wednesday went looking for a more reasonable way to judge states’ power in the immigration field.
Here’s the Scalia argument that Denniston is talking about:
But 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?
That’s nice, but as Verrilli notes whatever Scalia thinks state “sovereignty” should entail the actual Constitution that Scalia is supposed to be interpreting gives plenary power over immigration enforcement to the federal government. The argument the SB 1070 doesn’t conflict with said federal law is at least colorable, but the argument that Arizona has the inherent authority to protect its “sovereignty” in ways that conflict with federal powers is absurd.