Jae C. Hong / AP
Republican presidential candidate, former Massachusetts Gov. Mitt Romney, accompanied by by Sen. Marco Rubio, R-Fla., talks to reporters in Aston, Pa., Monday, April 23, 2012.
Wednesday’s argument before the Supreme Court over the constitutionality of an Arizona law cracking down on illegal immigrants is almost as much of a 2012 campaign event as it is a courtroom face-off between the Obama administration and Republicans.
This week’s oral argument focuses attention on illegal immigration just a few days after the most prominent Latino Republican, Florida Sen. Marco Rubio, highlighted the division between himself and Mitt Romney on the Arizona law, saying, “I do not believe that laws like Arizona’s should be a model for the country.”
A potential vice presidential running mate for Romney, Rubio campaigned with Romney on Monday in the Philadelphia suburbs. Romney told reporters he was studying an immigration bill that Rubio is drafting.
Rubio also said last week, “I understand why the people of Arizona did what they did (in passing the immigration law, known as S.B. 1070) and I think if you live in a state like Arizona that was facing and is facing the challenges that Arizona faces, people would understand why they reacted the way they did.”
He added that Arizona had a constitutional right to enact its law, but “I would much rather the federal government deal with the illegal immigration issue and modernize our legal immigration system ... .”
Rubio’s comments put him at odds with Romney, who in a debate in Arizona in February called the state’s immigration law “a model.”
Romney has also said he hoped the law “will be implemented with care and caution not to single out individuals based upon their ethnicity.”
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The Arizona law, enacted in 2010 by a Republican-controlled legislature and signed by Republican Gov. Jan Brewer, makes it a state crime for non-citizens who are unlawfully in the United States to work in Arizona, requires police officers to check the immigration status of any person involved in a routine stop, and requires the arrest of any person whom a police officer has probable cause to believe is an illegal immigrant.
Before the Supreme Court
Wednesday’s argument is the second time in two years that an Arizona immigration statute has been before the high court.
Last May, in a 5-3 decision, the justices upheld an Arizona law requiring employers to use the federal E-Verify system to check the legal status of newly hired employees, and which permits the state to revoke business licenses of employers who knowingly hire illegal immigrants.
Supreme Court Justice Elena Kagan, who served as President Barack Obama’s solicitor general, recused herself from that case and also from the case being argued Wednesday.
Arguing for Arizona on Wednesday will be Paul Clement, who served as solicitor general in the Bush administration; facing him will be Donald Verrilli, the current solicitor general. They’re the same duo who squared off in the oral argument at the high court three weeks ago over the the president's health care overhaul.
Kagan’s recusal creates the possibility of a four-to-four split among the justices. Such a split would leave in place the decision of the U.S. Court of Appeals for the Ninth Circuit which blocked enforcement of key sections of the Arizona law last year.
But the appeals court decision wouldn’t be binding precedent, which means other states could enact laws similar to Arizona’s (as a few states already have done) and hope a future Supreme Court ruling would uphold them.
The Obama administration argues that regulating immigration is the job of the federal government, not the states, and that where the federal government has pre-empted state action, no state can intrude on federal turf.
Verrilli says in his brief to the high court that allowing states to put illegal immigrants in jail “would impermissibly interfere with the Executive Branch’s discretion, conferred by Congress, to determine whether or not a particular alien’s unlawful presence warrants detention or removal.”
The Arizona law, he contended, deprives the federal government of the power to decide whether a particular illegal immigrant in Arizona ought to deported or be allowed to stay in United States.
In an interview with NBC’s Pete Williams, Clement said a crucial issue is “to what extent Congress, having made it pretty clear they want the immigration laws enforced, can essentially have that judgment overridden in part by the Justice Department and their enforcement posture.”
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He contended that “this Arizona law is exactly what Congress had in mind, especially when it comes to making sure that there’s cooperation between state and local law enforcement and the federal immigration officials.”
In his brief, Clement also contended that the 1986 Simpson-Mazzoli immigration law focused “only on the demand side” by penalizing employers who hire illegal immigrants.
He said the Arizona law “reinforces” the 1986 federal law by “addressing the supply side” – punishing non-citizens unlawfully in the United States who try to work in Arizona.
What it could mean to Latino voters
Just as the high court’s “Obamacare” decision, when it is handed down this summer, will have an impact on the November election, so, too, will the Arizona decision.
If the justices rule in favor of Arizona, Democrats hope it will spark a surge of Latino voter registration and a wave of Latino votes in November not only in Arizona but in in hotly contested states such as Colorado, Nevada, and Florida.
Rep. Raul Grijalva, a Democrat who represents a Latino-majority congressional district in Arizona, said, “If the court were to uphold the law, the alternative left to many of us would be that we need to politically change the culture in Arizona because the court will not be that refuge for us.”
Conversely, if the justices strike down the law, “it’s kind of like, ‘we fought the law and we won.’ But that victory wouldn’t dampen what’s going on out there” with Democratic efforts to register and mobilize Latino voters, Grijalva said.
Stanford University political scientist Gary Segura, who is a principal in the polling firm Latino Decisions, said, “There’s only good news for the president in this one, at least among Latino voters and probably overall.”
Segura points to the increase in Latino voting in California after voters in that state approved Proposition 187 to deny state benefits to illegal immigrants in 1994. If the Supreme Court upholds the Arizona law, that would probably mobilize Latino voters more effectively than if the court strikes down the law, he said. But either way, “simply having the court raise the salience of immigration helps the president,” Segura said.
Romney seems aware that there’s some political risk for Republicans in the immigration issue. At a fund-raising event last week in Florida, Romney warned donors that polling shows Latinos overwhelmingly favoring Obama – a fact which "spells doom for us," he said.
Romney, Rubio, and other Republicans seem to be edging towards a more accommodating approach to younger non-citizens who were brought to the United States as children by their illegal immigrant parents.
The Senate has twice voted to reject the DREAM (Development, Relief, and Education for Alien Minors) Act which would give a road to citizenship to non-citizens who’d been brought to the United States as children under age 16 by their illegal immigrant parents.
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A new proposal?
Rubio has been crafting a Republican DREAM bill that would allow such young non-citizens to stay in the country and apply for residency.
Romney was non-committal Monday about Rubio’s proposal.
“He and I have spoken about his thinking on his version of a different act than the DREAM Act that’s been proposed in the Senate,” Romney told reporters Monday as Rubio stood by his side at a press conference.
Romney said “the one that’s been proposed in the Senate creates a new category of citizenship for certain individuals. The senator’s proposal does not create that new category, but instead provides visas” for younger people brought to United States by their illegal immigrant parents. “I’m taking a look at his proposal. It has many features to commend it, but it’s something that we’re studying.”
Referring to the Rubio proposal, Frank Sharry, a veteran advocate of comprehensive immigration reform, said “I think it has caught the Obama administration and some Democrats a little bit on the back foot.” Sharry said if Rubio can bring a dozen or so GOP senators with him to support his proposal it might create momentum for a vote in the Senate.
Romney said at that Florida fundraising event last week his party must offer a "Republican DREAM Act," although it’s not yet entirely clear how a GOP version would differ from the one which the Senate rejected in 2007 and again in 2010, with most Republican senators and some Democrats voting against it. Romney has pledged to veto the Democratic version of the DREAM Act.
As for this November’s election, Segura said there’s an important difference between the DREAM Act and the Arizona law. “The DREAM Act is a motivator around the issue of immigration for people who think that’s important and are emotionally attached to it, but S.B. 1070 has the potential to mobilize even people who are not all that interested in immigration.”
S.B. 1070 will have a wider motivating effect, he said, because the law opens the way to arresting people simply because they appear to be Latino or are speaking Spanish – even if they are American citizens or legal permanent residents. The only basis for identifying a non-citizen illegally in Arizona “would be the language that they’re speaking and their looks – and that affects all Latinos,” he said.
NBC's Pete Williams contributed to this report.