Supreme Court Hears Oral Arguments Over Arizona Immigration Law

The Supreme Court is hearing oral arguments today in the immigration case of Arizona v. United States. I published a column in USA Today yesterday on the case. I discussed the case yesterday on NPR’s Diane Rehm Show and will be updating this blog with developments and I will be on NPR’s Here and Now to discuss the case at noon.

At issue is the right of states to pass concurrent laws in the immigration field. The Arizona law purports to merely enforce federal law — raising questions of how such a law could conflict with federal law. There are four specific provisions at issue in the law, S.B. 1070 or the “Support Our Law Enforcement and Safe Neighborhoods Act.”

1. Section 2(B) requires that state police check the legal status of persons arrested before they may be released. This provision also allows police to stop and arrest anyone suspected of being an undocumented immigrant.

2. Section 3 makes it a state crime to be in Arizona without legal immigration papers.

3. Section 5(C) bars all undocumented immigrants from applying for a job or working in the state.

4. Section 6 allows for warrantless arrests of anyone believed to have committed a crime that would lead to deportation, even if the crime had been committed in another state.
Five other states have passed new laws along the same lines as Arizona, including Alabama, Georgia, Indiana, South Carolina, and Utah.

With Kagan recused, a four-to-four tie would lead to the Ninth Circuit’s ruling against the law being upheld. That is why, again, all eyes were on Justice Anthony Kennedy. Yet, Kennedy joined last May in an opinion by Chief Justice John G. Roberts, Jr. in U.S. Chamber of Commerce v. Whiting (joined by Justices Alito and Scalia) that “Implied preemption analysis does not justify a ‘freewheeling judicial inquiry into whether a state statute is in tension with federal objectives’ . . . such an endeavor would undercut the principle that it is Congress rather than the courts that preempts state law . . . Our precedents ‘establish that a high threshold must be met if a state law is to be pre-empted for conflicting with the purposes of a federal Act.’” With Justice Clarence Thomas long opposed to implied preemption arguments, that would make five votes in this case if the matter is treated in the same fashion.

Early reports fro Scotus and other blogs is that most of the time was spent on the provisions permitting the state to inquire about immigration status. That part of the act is viewed as the least vulnerable of the provisions and is expected to be upheld. Remember all the Administration needs is one conservative vote to uphold the Ninth Circuit on striking down the state crime provision on immigration status since Kagan has recused herself.

Scalia reportedly advanced the view that states have the broadest possible authority to close their borders to illegals. What is clear is that the Administration is not likely to sweep the case based on a rejection of concurrent jurisdiction. However, it is not clear how many of the sections would survive.

It was another bad day for Solicitor General Donald B. Verrilli Jr. who was embarrassed by a less than stellar performance in the health care argument — and Justice Ginsburg stepping in to tell him what he should be arguing. In this argument, it was Justice Sotomayor who observed “I’m terribly confused by your answer” and then added “You can see it’s not selling very well.”

55 thoughts on “Supreme Court Hears Oral Arguments Over Arizona Immigration Law”

  1. Mike Appleton

    What is wrong with asking someone who has been pulled over by law enforcement to show proof of citizenship? I live on the border and do you know that the drug lords have control of the businesses here in the u.s. They make you pay a monthly fee or you will be shut down for fear of your life. They force ranchers to look the other way as they move drugs and humans through their land. If you speak out you or your family will die. Americans better wake up before it is too late. Profiling is the least of our worries.

  2. In reading Adam Serwer’s take on this case in Mother Jones
    <a href=""<here, I came away with the following — and to me depressing — observations:

    (1) “Although Obama has deported a record number of people during his first three years in office, fulfilling a campaign promise to enforce immigration laws, the reform side of his immigration agenda lies in shambles.”

    So President Obama has fulfilled a campaign promise made to Republicans to do more of what they want done to Latinos while doing nothing for those Latinos who voted for him hoping he would help them improve their lives.

    (2) The Arizona case “is a win-win for Obama no matter what the outcome is,” says Gary Segura, the pollster. “Ironically, I think Obama’s helped more if the United States loses the case, but it’s at a huge price for Latinos, upon whom the court will have declared open season.”

    So President Obama wins if the Republicans win and the Latinos lose whether the Republicans win or Obama wins.

    Which leads to:

    (3) “Are Latinos sufficiently disappointed in Obama to stay home?” Segura asks. “Fear is a good mobilizer.”

    Welcome to the Democratic wing of the Republican party, Latinos. As charter members of the “base” you can expect to vote for what you want and not get it (as in 2008) or vote against what you don’t want and get it (as in 2008). Either way, President Obama panders to the Republicans who hate him by giving them what they want while stiffing you who love him because “you’ve nowhere else to go.”

    Understand, if you can, Latinos, that Republicans play to win because “nothing succeeds (for them) like success,” while Democrats play to lose because, as the Republicans have taught them, “nothing succeeds (for you) like failure.” If trying to untangle that lunatic logic gives you a headache, Latinos, then welcome again to the Democratic wing of the Republican party — President Barack Hoover Obama presiding.

  3. “It’s hard for me to accept that it is ineptitude. What other reasons are there?” — mahtso.

    During my youth, the Kennedy and Johnson administrations had legions of people with demonstrated intelligence and all the academic, legal, and business credentials anyone could possibly want. They called themselves — and the National Corporate Media called them — The Best and the Brightest. They tried to invade Cuba with some CIA exiles, nearly got us involved in a nuclear war, and then led our country into a debacle in Southeast Asia of historic dimensions. The Republicans then came into office with their own “big thinkers” like Henry Kissinger and stalled for endless time in Southeast Asia until the people drove President Nixon from office and Congress pulled the plug on their funding. So I caution you from bitter experience never to discount (1) ineptitude, (2) venality, (3) egomaniacal vainglory, and (4) wooden-headed stupidity as the operative explanation for American government, regardless of which right-wing party occupies the institution at any given time. The late-great historian Barbara Tuchman covered all of this and more in her classic study of misgovernment, The March of Folly. Arthur Schlesinger, Jr. did a pretty good job, too, in The Imperial Presidency. Read them and weep.

    Not long ago, we barely survived eight years of The Worst and the Dullest: namely the Cheney/Bush “Mayberry Machiavellis” (to employ John DiIulio’s immortal phrase). Now we’ve got something that calls itself “eleven dimensional chess” while appearing to play hopscotch on a checkerboard.

    Believe nothing “official”. Suspect everyone in positions of “authority.” You will stay sane longer that way.

  4. I don’t have the knowledge required to know if Mr. Rosen is right. But if there are known arguments that the Administration, which has a lot of smart lawyers, will not make, doesn’t stand to reason that either: the Administration does not agree with positions being espoused, or that they know the arguments are flawed? It’s hard for me to accept that it is ineptitude. What other reasons are there?

  5. First Health Care, Now Immigration: How the Government Fumbled Its Latest Supreme Court Case

    Jeffrey Rosen

    “At the conclusion of yesterday’s oral arguments in Arizona v. U.S., the case that will decide the fate of Arizona law SB 1070, Chief Justice John Roberts said, “Thank you, Mr. Clement, General Verrilli. Well argued on both sides.” The tip of the hat to the Solicitor General and his conservative opponent, Paul Clement, seemed designed to reassure Verrilli that he had redeemed himself after his much-criticized previous appearance with Clement in the health care arguments last month.

    In fact, however, as he did in the health care case, Verrilli again failed to make the most convincing constitutional argument in support of his position. The argument that the government should have offered in the immigration case closely resembles the one it failed to offer in the health care case. In the immigration case, the argument goes something like this: The Framers of the Constitution intended to transfer power over foreign relations from the individual states to the federal government. The federal government uses its immigration powers—including the power to welcome, expel, detain, and place conditions on aliens—as an instrument of foreign policy. State laws like Arizona’s SB 1070 undermine the uniformity of federal foreign relations policy and can harm relations with foreign countries by inviting retaliation against U.S. citizens abroad.

    This is not a particularly novel argument. It appears in briefs filed by the Constitutional Accountability Center and by former Solicitor General Seth Waxman on behalf of former officials at the departments of State and Defense, as well as in a brief filed by former Democratic members of Congress. In a new book, Living Originalism, Jack Balkin provides further background on why the Framers would have intended to prevent states like Arizona from interfering with federal immigration policy. Balkin notes that the Commerce Clause of Article I, Section 8 of the Constitution, which provides that “Congress shall have the power … [to] regulate Commerce with foreign Nations, and among the several States,” was originally understood “to give Congress power to legislate in all cases where states are separate incompetent or where the interests of the nation might be undermined by unilateral or conflicting state action.” In the area of immigration, this means that Congress needs exclusive authority to control America’s borders as part of its power to regulate commerce—which was originally understood as a synonym for “interactions”—with foreign nations.

    Perhaps because of an aversion to making textual and historical arguments about the Constitution, Verrilli avoided this argument in his brief, just as he had avoided it in his brief in the health care case. If Verrilli had emphasized the need for uniform federal control over foreign policy, he could have pointed to the many ways that the Arizona law, SB 1070, has harmed America’s foreign relations, including antagonizing foreign governments, exposing U.S. citizens to retaliation, and making it harder for the U.S. to negotiate in international bodies. At the oral arguments, in response to questions from Justice Scalia and other conservative justices, Verrilli did suggest that federal officials should consider geopolitical considerations in deciding whom to deport. But if he had linked his arguments more closely to the expectations of the Framers, he might have had a better chance of convincing Scalia and his colleagues.

    Indeed, what makes Verrilli’s failure to emphasize this argument—that the Framers intended Congress to regulate in cases where the states can’t agree—all the more bewildering is that the conservative justices might have been receptive to it. In other cases, Roberts has repeatedly ruled for national uniformity rather than states’ rights, embracing a broad rather than a narrow view of the federal government’s ability to “preempt,” or displace, inconsistent state laws. In 2010, Roberts joined a 5-4 opinion by Justice Scalia holding that California’s policy of disfavoring contracts that require arbitration as a way of settling lawsuits was preempted by the Federal Arbitration Act, which viewed arbitration more favorably. And in a dramatic 5-4 decision from 2008, Wyeth v. Levine, Roberts joined the conservatives in dissenting from the Court’s holding that federal food and drug law doesn’t preempt the multi-million-dollar jury verdict awarded to a guitar playing woman whose arm was amputated after a nurse improperly injected an anti-nausea drug that caused gangrene.

    Of course, in each of those cases, Roberts and other conservatives were favoring the interests of big business. On matters relating to immigration, by contrast, they have been far less sympathetic to arguments about federal uniformity. In yesterday’s oral argument, Roberts expressed skepticism that the Arizona law was “preempted” by the need for national uniformity in federal immigration enforcement policy. And in a 5-3 opinion last year, Roberts held that an Arizona law suspending the licenses of businesses that hire illegal aliens wasn’t preempted by the federal Immigration Reform and Control Act, which prohibits states from imposing civil or criminal sanctions on business that hire illegal aliens. If Roberts votes to uphold the Arizona law in the name of states’ rights, it will be hard to avoid the conclusion that he favors states’ rights when the interests of anti-immigrant police officers, but not businesses interests, are concerned.

    Regardless of how the Court rules on immigration, liberals don’t have to apologize for urging the Court to strike down the Arizona law and to uphold the health care mandate. In both cases, the Framers of the Constitution feared that inconsistent state policies would make it impossible to enact a national solution to a national problem. If the Obama administration had offered a clear argument about the importance of federal uniformity in both cases, based in constitutional text and history, it might have challenged the conservative justices to be similarly consistent.”

    Jeffrey Rosen is the legal affairs editor of The New Republic.

  6. The racial profiling issue was not argued because the statute has not been implemented. Even though everyone knows from reading the statute that it is an open invitation to profiling, “everybody knows” arguments don’t have any legal weight. But several incidents in Alabama pretty much confirm that it’s all about profiling. And lawyers know that pretextual stops by the police occur as a matter of course.

    What is more problematic for me is the provision which so many believe will pass muster, the “papers please” provision. After all, why should a guy with a strange, unAmerican name like “Arpaio” be permitted to question the citizenship of someone with a cool, American name like “Appleton”? But assuming no one buys that argument, what will prevent each state from adopting its own criteria for satisfactory evidence of citizenship? How many states will be tempted to compel the use of travel permits or visas, issued for a small fee of course? This is an area of the law which demands federal preemption.

    As to the argument that the states are responding to the failure of the federal government to enforce the law, the solution to that is political. Elect members of Congress who see to the enforcement of federal laws. A piecemeal, state by state response to immigration problems, whether real or perceived, is merely a form of federalist vigilantism. The Arizona legislation is the state equivalent of “stand your ground” statutes.

  7. Obama: 42 (37)
    Romney: 40 (43)

    Arizona has 11 electoral votes, so it’s a big prize—and not the kind of state that Mitt Romney wants to be in play. It seems that while his embrace of SB 1070 might have helped him in the primary, it’s not giving him a boost in the general.

  8. Yesterday, the question of why “they” didn’t pass a law like this when G. Bush was president was raised. I did not know, but I learned last night. They (the Az legislature) did pass such a law, but it was vetoed by then-Gov. Napolitano, who is now Secretary of Homeland Security.

    Gov. Napolitano also declared a state of emergency in the border counties and she sent the federal government a bill for Az’s costs related to illegal immigration. (The details are fuzzy in my mind, but I believe the bill was for over $1 billion.) Then-Gov. Bill Richardson also declared a state of emergency in New Mexico.

    In an interesting bit of political theatre, Arizona’s treasurer sent Sec. Napolitano a similar bill. To my knowledge neither the Bush nor Obama administrations have paid.

  9. The latest polling shows that Ms. Brewer’s actions are putting Arizona in play.

  10. Political By Nature

    “For a case that is about show-me-your-papers, it was more than a little odd that the Supreme Court police — for the first time anyone could recall — asked reporters on the Supreme Court plaza to show their IDs to get into a roped-off area where TV cameras routinely set up.

    It was even stranger when police then refused to allow lawyers and principals involved in the case to come over to the microphones. Even Arizona Gov. Jan Brewer was barred from the press gaggle. Finally, after a near insurrection from the press corps, the court cops relented.

    The political nature of the case was quickly apparent when Brewer, accompanied by a close adviser to Republican presidential candidate Mitt Romney, accused the Obama administration of challenging the Arizona law for political purposes.

    “This is an election year, and I believe that [the Obama administration’s challenge] was staged,” Brewer said. “They’re playing to the Latino community.”

    Inside the courtroom, the questioning was so intense that Chief Justice John Roberts extended the allotted time for argument by 20 minutes.” Nina Totenberg, NPR

  11. Professor Turley – I’m interested in hearing your opinion of Sen. Bernie Sanders’ introduction of a constitutional amendment stripping the rights of corporations to freedom of speech protections under the first amendment.

  12. Alito did his drama queen bit yesterday showing disdain for fellow justices. Between him and Fat Tony’s incessant dick waving during questioning I am gaining new appreciation for Thomas’ sleeping through orals.

    Actually what those two do should more accurately be termed anal arguments.

  13. I got a traffic ticket once riding on my motorcycle. So I spent a Saturday in Traffic School in order to expunge the incident from my driving record. One of the other attendees complained to the police officer giving the lectures that she had gotten busted for going 75 mph on a 65 mph freeway when so many other motorists went speeding by even faster without also getting tickets. In reply, the police officer asked: “Ever go fishing?” And when the lady answered “Yes,” he inquired further: “Ever catch all of them?”

    This trumped-up, culture war, “illegal immigration” case reminds me of that Traffic School experience. Justice Scalia appears to think that, practically speaking, the feds can’t catch “all of them” so the state must step in to see that “all of them” get caught. But if “all of them” don’t get caught because federal and state law enforcement agencies combined do not have sufficient manpower or operating budgets for the job, then an argument will always exist for yet someone else to step in to see that they “all” get caught, and so on and so forth.

    In terms of dialectical disputation, this argument appears to run afoul of the Fallacy of Impossible Precision of which T. Edward Damer says (in Attacking Faulty Reasoning: a guide to fallacy free arguments):

    “This fallacy consists in drawing a conclusion based upon a claim made with a kind of mathematical precision that is impossible to obtain.”

    No one can possibly know how many of something constitutes “all of them,” and in the absence of agreed-upon data showing how many of “them” one might consider even “sufficient” (let alone “all”), no conclusions of any kind necessarily follow. It surprises me that no one arguing the federal case in court has made this observation, or if they have, that the court finds it of little interest.

    While not a lawyer, it also seems to me that for the government to decline any argument against politically motivated racial profiling loses the “equal protection of the law” which the Fourteenth Amendment guarantees to all persons within a state’s jurisdiction and which clause of the Constitution the federal government has successfully used to alleviate several forms of discrimination in the past, including racial and gender discrimination. Who in the Obama administration bears responsibility for abandoning such a powerful and tested line of argumentation: the Solicitor General, the Attorney General, or the President of the United States?

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