AZ: Legal profs see uphill battle for SB 1070 in high court

April 23, 2012

PHOENIX — When Paul Clement walks into the U.S. Supreme Court on Wednesday, he’s going to try to convince at least five justices that Arizona has an inherent right to enforce federal immigration laws.

He needs them to believe that to get them to overturn lower court decisions which have so far concluded that key provisions of SB 1070, the state’s 2010 comprehensive measure aimed at illegal immigrants, are pre-empted by federal law.

Three law professors say Clement could have an uphill fight.

Paul Bender from Arizona State University College of Law said that, everything else being equal, the conservative justices would tend to side with the state in any legal battle. And the liberal branch of the court is short one of its players, with Elena Kagan having recused herself since she was federal solicitor general in the Obama administration, which is suing the state.

But this isn’t a normal case.

“This is not a question of states’ rights versus individual rights,” said Gabriel “Jack” Chin of the University of California at Davis.

“This is a conflict between states’ rights and traditional federal authority. There, it’s not clear the traditional conservatives are interested in undermining federal authority in foreign policy and national security.”

That’s precisely what Solicitor General Donald Verrilli Jr. has argued, with the Obama administration even presenting arguments from foreign governments on how Arizona’s law interferes with their relations with the United States.

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