Why it isn't a good idea to consider SB 1070 in the Supreme Court now - By Professor Peter Spiro of Temple Law School, he was ranked in the top 15 nationally among international law scholars on the basis of academic citation frequency

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Scholar Peter Spiro has testified before the Senate Foreign Relations Committee :

Opinio Juris
Supreme Court Takes Review of Arizona’s SB 1070 (But Why?)
by Peter Spiro
December 12, 2011

Peter J. Spiro from Temple Law School faculty, inaugural holder of Charles R. Weiner Professorship in international law. A former law clerk to Justice David H. Souter of the U.S. Supreme Court, Spiro specializes in international law, the constitutional aspects of U.S. foreign relations, and immigration and nationality law. Spiro is the author of Beyond Citizenship: American Identity After Globalization.

In a 2007 survey, Professor Spiro was ranked in the top 15 nationally among international law scholars on the basis of academic citation frequency. He has contributed commentary to such publications as FOREIGN AFFAIRS, THE WALL STREET JOURNAL, and THE NEW REPUBLIC. He also writes for the leading international law blog, Opinio Juris

In addition to his 1990-91 Supreme Court clerkship, Spiro served as a law clerk to Judge Stephen F. Williams of the U.S. Court of Appeals for the D.C. Circuit. He has also served as director for democracy on the staff of the National Security Council, as an attorney-adviser in the U.S. Department of State's Office of the Legal Adviser and as a resident associate at the Carnegie Endowment for International Peace.

Supreme Court Takes Review of Arizona’s SB 1070 (But Why?)


Some excerpts :

The Supreme Court announced a grant this morning in the SB 1070 case.

I don’t know why the Court took the case. It could easily have ducked. There are other cases working their way through the pipeline from copycat states (Georgia, Alabama, South Carolina). The Court could have waited for further “percolation” of the issue in the lower courts and the prospect of a circuit split. It already has one political hot-button issue on its plate; why load up with another? No faction on the Court appears to have an immigration-related agenda (though obviously the right side has a federalism-related one).

On the other hand, the Court probably felt warmed up on the issue after the Whiting decision last term, in which it upheld a narrower AZ law relating to e-Verify and employer sanctions. The Court would probably have had to get to this at some point, so why not establish some certainty now. And a majority is probably not on board with the Ninth Circuit’s decision here, which enjoined all key parts of the law.

This will be a big decision at the intersection of immigration and federalism, probably the biggest since its 1942 decision in Hines v. Davidowitz. It could also have important implications for foreign relations federalism. My guess is that the Court is going to split the difference here. I think it’ll uphold a key provision requiring law enforcement to undertake immigration status determinations, but it will nullify another which in effect makes undocumented status a crime under state law (it isn’t under federal). But it will raise the overall bar for preemption, moving away from Hines’ hair-trigger standard, even in such sensitive areas as immigration an foreign affairs.

Meanwhile, this will probably short-circuit political efforts on the ground to scale the law back, at least pending a decision. That’s too bad. These laws might have gone away on their own. For the moment, the Court’s intervention will make that less likely.

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