Supreme Court to Hear Arizona Immigration Law Case

According to a recent article in the Wall Street Journal, the Supreme Court will soon decide whether Arizona specifically and other states, more generally, are allowed to target illegal immigrants for arrest.

With this announcement comes yet another highly political issue the Court has decided to weigh in on. This, in conjunction with President Obama’s signature health care law and a voting rights case in Texas are intensely partisan debates that the justices will issue an opinion on in the coming year.

Clarifying the limits of state and federal authority will be foremost in the immigration case, as well as in the dispute over the health care law. In another highly partisan dispute, the court on Friday agreed to rule on a Texas congressional remapping that figured to give Republicans four more seats in the House of Representatives. The Obama administration’s lawyers contend that the plan would deny fair representation to the state’s growing Latino population.

The Court’s ultimate decision on the Arizona case will decide the fate of other laws in states such as Alabama, Georgia, Indiana, South Carolina and Utah.

The issue before the justices is whether states may enforce the immigration laws on their own, or instead defer to the federal government with regard to immigration policy.

The U.S. Constitution grants Congress the power to set a “uniform rule of naturalization,” and this has been understood to mean the federal government decides who may enter or stay in the country. However, the Court has not ruled on just how broad this grant of authority is and, as a result, questions about the extent of states’ authority on the subject remain.

The new case began in July 2010 when Obama administration lawyers filed suit in Phoenix and argued Arizona had gone exceeded its authority by enlisting police to enforce the stringent immigration law. Under SB 1070, the Arizona immigration law, police are required to check the immigration status of people they lawfully stop and suspect of being in the country illegally. The law also makes illegal immigration a state crime. U.S. District Judge Susan Bolton blocked much of the law from taking effect, and the U.S. 9th Circuit Court of Appeals upheld her decision.

The court’s announcement said Justice Elena Kagan had stepped aside in the case, creating the possibility of a 4-4 split. A tie vote would affirm the 9th Circuit Court’s decision, giving a win to the Obama administration and a defeat to Arizona and like-minded states.

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Supreme Court Must Answer “The Broccoli Question”

With the recent decision by the Supreme Court to hear the challenge brought by states against President Obama’s national healthcare plan, the justices will be left to answer the broccoli question. Namely, “If Congress can order you to buy health insurance, why can’t it order you to buy (and eat!) broccoli?”

The answer isn’t as simple as it seems. If the Supreme Court finds the insurance mandate in the healthcare reform act is constitutional, it is endorsing a very expansive view of Congress’ power to regulate interstate commerce under Article I of the Constitution. The Obama administration argues Congress is well within its rights to regulate an interstate industry that delivers a product virtually every American will use at some point in his or her life. That administration argues that for an individual to go without health insurance is to impose costs on other Americans.

But that same argument works for broccoli, the eating of which is believed to protect against colon cancer. Reducing the rate of colon cancer would reduce healthcare costs and thus have a direct economic impact on the interstate healthcare market.

Advocates of Obama’s plan have had difficult identifying what makes healthcare different from many other markets. David Kopel, a conservative constitutional law expert with the Cato Institute points out, “You can think of lots of products everybody consumes. Clothing. Food.”

In fact, health insurance is one of the few products that by law can’t be purchased on an interstate basis as states aggressively protect their power to regulate the industry. So on that basis, Kopel said, healthcare might be one of the least interstate markets Congress can regulate.

The dispute hinges on the meaning of the Commerce Clause of the Constitution, which gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” The Necessary and Proper Clause says Congress may do whatever is “necessary and proper” to enforce its Commerce Clause authority and other “enumerated powers” contained in the Constitution.

The key cases concerning the Commerce Clause are U.S. vs. Lopez and U.S. vs. Morrison, two modern decisions that set limits on Congress’s Commerce Clause powers. In Lopez, the court struck down a law prohibiting guns near schools as being too disconnected from any reasonable concept of interstate commerce. And in Morrison, the court did the same. Congress tried to tie both laws to the aggregate effects of criminal acts on the economy, but in Morrison the majority held that was constitutional overreach.

In the majority opinion in Lopez Chief Justice William Rehnquist said the law was “invalid as beyond Congress’ power under the Commerce Clause.” The “possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, have ... a substantial effect on interstate commerce,” the opinion said.

In Morrison, Justice Steven Breyer penned a dissent making the very point Obamacare critics make. It’s impossible to formulate a rule, he wrote, that allows Congress to, say, outlaw growing marijuana for your own consumption but not violence against women. “Virtually every kind of activity, no matter how local, genuinely can affect commerce, or its conditions, outside the State,” Breyer wrote. Instead of being a defect, the idea of almost unlimited Commerce Clause powers is a fact of the modern world.

But Breyer lost that argument. The majority “wanted a limiting principle” on Congress and came up with one by deciding that federal laws can regulate a lot of seemingly uneconomic activity but must have a firm economic basis at their core.

To answer the broccoli question, when the Court hears the healthcare case the justices could rule that requiring people to buy insurance fulfills an interstate regulatory scheme, while forcing them to eat broccoli is too distant from any rational economic goal.

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