Guest Blog by: Donald Balla

Justices shot their questions. Lawyers responded. Bloggers wrote commentaries about oral arguments before the U.S. Supreme Court over Arizona Senate Bill 1070. The justices are now pouring over all the evidence and ideas. Expect a written decision in June.

This article is about what that U.S. Supreme Court decision will NOT contain. 

United States v. Arizona is a lawsuit brought by the federal government against a state—one government seeking to disadvantage undocumented aliens against an even harsher government. No one in this lawsuit is arguing to benefit undocumented immigrants. So don’t expect the decision to resolve the dilemma of aliens in America. Expect rulings over narrow issues like federal law pre-empting state law.

The Supreme Court writes opinions only on issues argued by the parties. So don’t expect the decision to clarify of the rights of undocumented immigrants. Neither side made such arguments. Therefore, expect no decision about whether:

  • The ex post facto clause of the Constitution forbids adding new punishments for past immigration crimes.
  • The excessive punishments clause invalidates laws that remove the right to work, drive and contract as punishment for small offenses.
  • The equal protection clause annuls laws that criminalize working—a behavior that is good and healthy when the rest of the population does it.
  • The bill of attainder clause forbids laws denying driver licenses to a blacklisted group.
  • The Constitution forbids punishing children for the offenses of their parents.
  • States may arbitrarily redefine “resident” for purposes of charging extra tuition for unpopular groups.
  • There is such growing evidence of legal prejudice against undocumented immigrants that they should gain “protected class” status for equal protection purposes.

Both sides in United States v. Arizona want to avoid a Supreme Court decision on the above protections. Both sides want to sanction undocumented immigrants in order to drive them away—whether in a constitutionally legal manner or not.

So don’t look to United States v. Arizona for direction-changing results.  If we want the Supreme Court to rule on the above issues, we need a different case. We need undocumented alien plaintiffs and/or representative groups to bring new lawsuits. A good place to start would be a plan to file 40 simultaneous lawsuits in 40 states challenging their driver license statutes.

We still have work to do. I see one more good Supreme Court case in our future.


Donald Balla is an attorney and a Professor of Business, Law and Economics at John Brown University, a Christian institution.  If you are a lawyer or just want the detailed research, contact [email protected]

Please note that the views expressed do not necessarily represent those of everyone associated with G92 or any institutions with which the blogger may be affiliated. 

We’re always looking for new guest bloggers; please check out our Guest Blog Submission Guidelines if you’re interested. 

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