Paul Bender

Faculty experts at the Sandra Day O’Connor College of Law were quoted in local news stories about the April 25 oral arguments in the U.S. Supreme Court on Senate Bill 1070, Arizona’s controversial immigration-enforcement legislation.

The case, Arizona v. United States, centers on a law passed by Arizona lawmakers two years ago that requires local police to check the immigration status of a criminal suspect if they have “reasonable suspicion” that the suspect is in the country illegally. The Obama administration sued to block the law, and most of the law is on hold during the appeal.

Professor and Dean Emeritus Paul Bender appeared on Channel 8’s Horizon on Wednesday, April 25, to analyze the oral arguments.

According to SB 1070’s core provision, Bender said, if the state checks an individual’s immigration status, and that person is here illegally, the state cannot detain him or her unless the federal government wants it to. Even if the person is illegal, the state must set him or her free if it is told to do so by the federal government, Bender said.

“It’s a facilitating way of having the state and the federal government exchange information,” he said.

Bender thinks the court will strike down the two main parts of the statute that say it’s a state crime for illegals to apply for jobs and that it’s a state crime for them to be in the state without proper documentation. Those requirements are pre-empted by federal law, he said.

Bender also said that the state’s lawyer, Paul Clement, was too glib and “sailed past certain things.”

“He really disappointed me because I don’t think he dealt with the situation,” Bender said.

To watch the video, click here.

Bender also appeared on Channel 5 on Wednesday, April 25, to comment on the court proceedings. While it used to be unusual for hearings to go over the time limit, it isn’t anymore, he said.

“It’s a signal that Justice Roberts is somebody who has argued a lot of cases before the Supreme Court and understands the problems that lawyers have,” Bender said.

Bender said he was most surprised that, in order “to defend the most famous provision of the law—the one that says police can ask for your papers if they have reasonable suspicion—the state construed it to mean nothing.” The state said the provision really has no effect, and that’s why it’s constitutional, he said.

Bender said he thinks a split decision will be made.

“They will probably uphold the main provision, the one about asking for papers, on the understanding that it doesn’t have any effect on holding people. They will strike down at least two of the other three provisions on the grounds that they are pre-empted by federal law,” Bender predicted.

To watch the video, click here.

As a guest on KJZZ’s Here and Now on Wednesday, April 25, Bender told host Steve Goldstein that the state’s attorney, Paul Clement, is defending the section that allows state inquiry of immigration status by saying it doesn’t change anything.

He said this is the only direction Clement can go to have the statute be constitutional. Bender thinks the court will uphold the provision as long as nothing is changed by it.

To listen to the interview, click here.

Andy Hessick

Professor Andy Hessick, Associate Dean of Faculty Research and Development, appeared on Channel 5 on Wednesday, April 25, to discuss what takes place inside the courtroom.

Hessick said that each side would get 30 minutes to argue its case, and the justices are generally strict about the time limit. There are green and red lights in front of the lawyers that signal when they can and cannot speak, Hessick predicted the justices would be asking many questions.

To watch the video, click here.

In a Thursday, April 24, Channel 10 segment, “Future of SB 1070 up to US Supreme Court,” Bender said Arizona’s law does not conflict with federal immigration law, it works alongside it.

“The Constitution contains something called the supremacy clause which says that all valid federal laws prevail over state laws that conflict with them,” Bender said. “Congress could settle the whole thing by just passing a statute. They have not done that, they won’t do that because they will not do anything these days. So the court has not guidance from Congress whether it wants the state to do this or not, so the court has to figure it out.”

Bender also said that the feds worry what might happen if every state can have its own immigration law.

“This affects foreign relations. Potentially 250 state sheriffs around the country enforcing their own immigration laws by arresting them could cause major international incidents because they might arrest the wrong people,” Bender said.

To watch the video, click here.

Bender also was featured on Channel 5 in a Tuesday, April 24, segment to discuss whether SB 1070 is constitutional.

“Does it conflict with federal law?” Bender said. “If it conflicts with federal law, then it’s unconstitutional because the Constitution says that federal law is supreme. But to decide whether it is in conflict is not that simple.”

According to a brief filed by former state Sen. Russell Pearce, Phoenix has experienced a 30-year low crime rate since the adoption of SB 1070.

“If the court thought that was true, some of the justices might use that as a reason for deciding the case,” Bender said.

To watch the video, click here.

Hessick was quoted in a Monday, April 23, Arizona Capitol Times article, “Arizona takes national stage with hearings on immigration law,” by reporter Jeremy Duda.

Hessick said the Supreme Court’s decision in the case will tell states whether, and to what extent, states can enforce federal immigration laws The Department of Justice and Obama administration argue state immigration-enforcement laws are unconstitutional because they are preempted by federal law.

“One could argue—and the government is arguing—that (federal immigration laws) are so broad that they meant for those laws to be the only laws on the topic, and therefore any Arizona law regulating immigration is inconsistent with federal law,” Hessick said. “If they uphold it, states will hopefully have a lot more clarification on what they do. And I think we can expect some states to pass more legislation because things will be more clear on what they do.”

To read the article, click here.

In an article, “Key issues to watch in SB 1070 hearing,” published on April 22, Bender told Alia Beard Rau of The Arizona Republic that this case will be tough for the federal government to win. If the justices break down along the conservative/liberal block, he said, five—including Justice Anthony Kennedy—could lean toward allowing the state to enforce SB 1070. Or Kennedy could go the other way, and there’s the 4-4 tie and no winning opinion, Bender said.

“The only way the liberals can get an opinion on their side in this case is to get the people from the conservative side,” Bender said. “Chances are, at most, one of them is going to side with the federal government and that would be Kennedy. But anything’s possible.”

Bender said this court does not have as much of a record of rulings in the areas of immigration and pre-emption as it does in other areas such as free speech, abortion or equal protection. This makes predictions difficult, he noted.

“Is immigration something where people like (John) Roberts or (Samuel) Alito or (Antonin) Scalia or (Clarence) Thomas might take a different position that we generally think of as liberal because immigration is different?,” he said. “This issue really is not liberal versus conservative. This issue is federal authority versus state authority.”

To read the article, click here.

Bender was also quoted in an April 22 East Valley Tribune article, “Arizona’s immigration law gets its day in U.S. Supreme Court,” by Capitol Media Services reporter Howard Fischer. Bender said that, everything else being equal, conservative justices tend to side with the state in any legal battle.

He also said while the justices are looking at the legal issues, they are not immune to what is going on around them. That includes a hearing the day before at the U.S. Senate Judiciary Committee, where one of the scheduled witnesses is former state Sen. Russell Pearce, the sponsor of the law.

“They read the papers,” Bender said. "If Russell Pearce should look like a crazy man in that hearing and comes across as anti-immigrant, anti-federal government, a loose cannon, that would hurt the state.”

To read the article, click here.

Carissa Byrne Hessick

Also in The Republic, in an April 22 article by Rau, Professor Carissa Byrne Hessick said attorneys may focus not on whether the state can enforce federal immigration law, but on how many, and which, legal cases to pursue.

“The federal government has made it clear that their priority, when it comes to immigration enforcement, is people who are both here and unauthorized and have a criminal background,” she said. “Arizona is saying `the federal government should have 100 percent enforcement, and because it doesn’t, we are going to enact our own laws that allow us to enforce in situations where the federal government doesn’t'.”

To read the article, click here.

In a Saturday, April 21, article in The Arizona Republic, “Arizona set to defend SB 1070 in pivotal Supreme Court case,” also by Rau, Bender said the federal government’s best chance may be to focus on the real-life impact of allowing the law—and similar laws in any other state—to go into effect.

“If any state can do something like this, you would have the possibility of every state in the country having some sheriff’s deputy or city policeman going up to someone who looks Hispanic and saying, ‘Show me your papers,’” Bender said. “That’s really the strongest argument for the government to make.”

On the other side, Bender said, Arizona’s most powerful argument is to show the federal government is not effectively enforcing its immigration laws.

To read the article, click here.

In an April 21 article, “Court’s review of SB 1070 provokes dozens of briefs,” also by Rau, Bender said the Supreme Court clerks will read all the briefs, and the justices will take notes of at least some of them.

“If I’m a justice, I pick those I’m interested in,” he said. “I pick ones from people I know, organizations I care about.”

To read the article, click here.

 Hessick was also featured in an April 20 segment on Arizona Public Media. She called SB 1070 a “legal labyrinth.”

“It can be really confusing,” Hessick said. “There is quite a bit of substance and a number of sections.”

She said that the United States has a strong argument in the registration section, which requires state and local law-enforcement officers in Arizona to determine if people they question from other countries have registered with the federal government under federal immigration rules, based on field pre-emption. However, it has a more difficult argument when it comes to the section involving whether law enforcement officers can make warrantless arrests when someone is removable or has committed a removable offense, Hessick said.

To watch the video, click here.

Bender teaches courses on and has written extensively about U.S. and Arizona Constitutional Law. Professor Bender has argued nearly two dozen cases before the U.S. Supreme Court and actively participates in constitutional litigation in federal and state courts. He was a law clerk for U.S. Supreme Court Justice Felix Frankfurter and was Principal Deputy Solicitor General of the United States from 1993-1997.

Hessick teaches Criminal Procedure, Criminal Law and Federal Crimes. Professor Hessick is the author of “Arizona’s S.B. 1070: Separating Fact from Fiction,” and co-author of “A Legal Labyrinth: Issues Raised by Arizona Senate Bill 1070,” which has been cited in, among others, The Wall Street Journal and The Economist. She was the primary host of a national conference, “The Role of the States in Immigration Policy and Enforcement,” held at the law school in October 2010.