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. Does anyone know how many businessmen or wealthy individuals have had to pay fines or/or do jail time for hiring illegals in Arizona? Quick way to solve the “problem,” should anyone in the Corporate Olilgarchy actually wish to solve it — which they don’t.

    Does failure to arrest and prosecute every individual who has broken a law mean that law enforcement does not take the law seriously and requires someone else to “put some bite” into the law? Can individual citizens bite another person if they suspect that this other person might have violated some law that neither state nor federal officials take seriously?

    Americans always say in polls what they strongly desire, but just as often indicate that they do not wish to pay any taxes in order to have what they say they want.

    And Corporate Media always reports on a “horse race” for the Presidency every four years, even if — like this year — the Republicans only have a rich rat running in it and the Democrats only have a black gelding who just wants all the rats to love him.

  2. From the above Bloomberg News quote:

    “Avoiding the question of discrimination may have been good politics, but it was a risky legal strategy for the administration.”

    Professor Turley has made this same assertion about politics (in his USA Today article): namely, that the “good politics” of this case might benefit President Obama’s reelection campaign, especially if the administration loses the case. Wrote Professor Turley, summing up his thesis: “When it comes to immigration politics, nothing succeeds so much as failure.”

    As best I could tell from trying to analyze Professor Turley’s presentation, the political considerations to which he refers stem from (1) polls which show that “Americans overwhelmingly support tougher immigration enforcement” and (2) “polls of Latinos [which] show that 85% favor illegal immigrants being allowed to gain legal status and that a majority oppose current enforcement as too strict.” In other words, and to put it crudely: President Obama has tried to respond in court to a culture-war political maneuver by avoiding the real question of discrimination so as not to antagonize “Americans” [i.e., Republicans] who discriminate against Latinos while at the same time wooing “Latinos” [or Democrats] who rightly feel discriminated against by Republican-Americans. I think I have read Professor Turley’s comments about politics correctly and fairly.

    So, following Bloomberg News’ and Professor Turley’s conventional wisdom (usually a consensus of widely held error), in order to succeed by failing, President Obama’s justice department must lose the case in court, which will somehow dismay the winning Republicans and “galvanize” the losing Latinos and other Democrats into more enthusiastically supporting President Obama who has once again caused them to wonder why in the hell they voted for this incompetent “champion” in the first place. “Good politics” by President Obama, all right, but only if you mean good politics for the Republicans — the only people President Obama appears interested in appeasing. As Sheldon Wolin observed in Democracy, Inc.:

    “While the Republican Party is ever-vigilant about the care and feeding of its zealots, the Democratic Party is equally concerned to discourage its democrats. … The timidity of the Democratic Party mesmerized by centrist precepts points to the crucial fact that, for the poor, minorities, the working class, anti-corporatists, pro-environmentalists, and anti-imperialists, there is no opposition party working actively on their behalf. And this despite the fact that these elements are recognized as the loyal base of the party.”

    Now, I do agree that “nothing succeeds like failure” in immigration politics, if by that we mean the deliberate transformation of ugly immigration reality into a politically exploitable “theological problem admitting of no solution,” in Professor Wolin’s apt phrasing. But Professor Turley does not acknowledge this historical understanding of classic divide-and-rule fascism and instead offers up a specious, glib, “horse race” narrative that implicitly excuses President Obama for not just legal incompetence, but also for once again betraying the poor and powerless people who once foolishly supposed that he actually gave a damn about their increasingly miserable lives and would do something to help them improve their economic circumstances. Instead he boasts of having deported 1.5 million illegal aliens, as many in three years as his Republican predecessor deported in eight. And for this “success” at doing what Republicans say they want, President Obama gets more culture war lawsuits from the Republicans instead of their votes.

    So, yes, nothing succeeds like failure for those who succeed by making things fail; but nothing fails like failure for those who claim to want success but fear to fight for it when necessary and right to do so. I wish that Professor Turley had made these distinctions clear, but unfortunately he didn’t. The Republicans have overindulged their “Shock Doctrine,” fascist proclivities, but President Obama and his Democratic party show few signs of either recognizing this or wanting to do much about it, either inside or outside of the political corporate court

  3. Achtung! Show me your papers! What, no drivers license? I know you are not driving a car. So, what do you do for a living? Supreme Court Justice? Yeah right. Were searching this Italian here George. He is With Out Papers. You know George, a WOP. Says he is some sort of Supreme Court Justice. Ok, George lock him up until we fingerprint him and run his prints. He dont talk Arizonian and says he says turd instead of third because he is from New York, but that dont sound like Donald Trump to me. He is an illegal immigrant. Trying to come in and do a nightclub comedy act. Says his name is Antonio.

  4. WASHINGTON —U.S. Supreme Court justices strongly suggested they would uphold a provision in Arizona’s tough immigration law that tells police to check whether people they stop for some other reason are in this country legally.

    But several justices also suggested they were troubled by parts of the law that would make it a state crime for illegal immigrants to seek work or not to carry immigration documents.

    The hourlong oral arguments Wednesday pointed toward a possible split decision: a partial victory for Arizona that would revive its first-in-the-nation state crackdown on illegal immigrants but weaken the impact of its law.

    The Obama administration won lower court rulings that blocked Arizona’s law on the grounds that it conflicted with the federal government’s control over immigration. But U.S. Solicitor Gen. Donald B. Verrilli Jr. ran into steadily skeptical questions from the justices, both liberal and conservative.

    Chief JusticeJohn G. Roberts Jr.said he saw no problem with Arizona’s police checking with federal immigration officials once someone has been lawfully stopped. “What could possibly be wrong if Arizona arrests someone, let’s say for drunk driving … and the arresting officer says, ‘I’m going to call the federal agency and find out if this person is here illegally’?”

    Verrilli repeatedly said the federal power over immigration was “exclusive” and did not allow any role for the states and police. Los Angeles Times

  5. “Avoiding the question of discrimination may have been good politics, but it was a risky legal strategy for the administration. No one (or at least no one but Justice Clarence Thomas) doubts that federal law can implicitly pre-empt an inconsistent state policy. Arizona, represented by Paul Clement (the conservative hero of last month’s health-care arguments), maintained before the court that its law is perfectly consistent with federal immigration law — it is just taking that law seriously and giving it bite.

    That left Solicitor General Donald Verrilli (who had a rough time during the health-care argument) to insist that Arizona had crossed the line into inconsistent policy-making. The trouble with this argument is that the law has not yet been enforced — which makes it harder to claim that enforcement of the Arizona law would lead to inconsistency with federal policy.

    To complicate things further, the framers of the Constitution were not worried about the states over-enforcing federal law. To the contrary, they feared that states would ignore laws made by Congress, as they had done under the Articles of Confederation. The Constitution solved that problem by making federal law the “supreme law of the land,” binding on states. To say that states cannot use at least some of their own discretion in enforcing federal law seems to turn states rights on its head.

    In Wednesday’s argument, the justices understandably focused on the “papers, please” provision. The government asserted that the obligatory demand to provide proof of citizenship conflicted with federal policy not to require such a demand — but not that the demand was otherwise unconstitutional. For his part, Clement argued that the demand alone could not displace federal law or immigration policy. Under the Arizona immigration law, any person detained for failing to produce his papers would be transferred immediately to federal immigration authorities, who could then make a decision about whether to deport him.” Noah Feldman, Harvard University, Bloomberg news

  6. From Wikipedia — “The Solicitor General or one of the deputies typically argues the most important cases in the Supreme Court. Cases not argued by the Solicitor General may be argued by one of the assistants or another government attorney. Often, assistants mass more total cases than the Solicitor General.”

    I don’t keep up with the identities of particular lawyers who argue for the government’s interests before the Supreme Court. I assume that whoever argues the government’s interest does so at the behest of the Attorney General — the government’s highest ranking legal official — and President of the United States ultimately.

    If the Solicitor General advances a line of argument with which I object — namely, that racial profiling has no bearing on the pseudo-case at hand — then I criticize the Solicitor General for making the objectionable argument as much as I would criticize the Attorney General, his superior, for making it. If I have confused the identity of two lawyers (one of whom works for the other) making the same argument that I consider ludicrous on its merits, then I see no grounds for considering either of the lawyers less objectionable than the other. My objection to the ludicrous argument still stands because I object to the argument for the many reasons stated above.

    My objections to Attorney General Holder derive from his making some of the most preposterous pronouncements that I have ever heard an AG make — “secret law” authorizing presidential assassinations of American citizens counting as only one of the most egregious. If, on the other hand, the Solicitor General or any of his assistants has not argued this preposterous “secret law” presumption before the Supreme Court, despite what the AG may have told him (or them) to do, then I would excuse the Solicitor General from Holder’s (and Obama’s) taint in this one instance. Not likely, but theoretically conceivable.

  7. “Can it be made a state crime to rob [federal] banks? I think it is.” — Justice Scalia

    No, you senile, grammatically challenged reactionary ideologue. You have to reverse the sense of the verb in the interrogative and state it affirmatively in the indicative. Thus you need to ask/say: “Can it …? I think it can.”

    At least Justice Thomas keeps his mouth shut during oral arguments so that he doesn’t drool all over himself as does Justice Scalia.

    And what a piss-poor excuse for “reasoning by analogy” to compare poor immigrants trying to find dirty, low-wage jobs with bank robbers trying to make a fortune by not working for it. Actually, that sounds more like the criminal behavior one expects from Wall Street hedge fund managers and corporate CEOs, but one could hardly expect Corporate Justice Scalia to advocate their deportation on the grounds that the federal legal system either will not or cannot do its job bringing them to justice.

    Somehow I suspect that wealthy white Arizonans will go on hiring illegal aliens to do the work they refuse to do, for wages they would never accept, while despising the working poor immigrants for doing it. The outcome of this case will have no bearing on that ugly reality because deliberately contrived theological “problems” by definition and design have no “solutions.” Somehow this reminds me of the corrupt Renaissance popes selling indulgences to the unrepentant who know they can always come back for another one and another one, so long as they pay (and pay deference to) the pope.

  8. It wasn’t the Attorney General. It was the Solicitor General in the line of questioning. Read the Scotus blog summary before you go off the rails.

  9. Blouise, Good news. The Texas legislature meets every other year, and they did an enormous amount of damage last year.

  10. Jack,

    While making no claims to genius myself, I recall only recently where the Attorney General publicly claimed that “due process” does not mean “judicial process.” The fact that the Attorney General said something this outrageous and untrue neither induces me to believe what he said nor inclines me to respect him for saying it.

    Furthermore, that the Attorney General does not see the need for courts to consider racial profiling where it obviously applies sounds as indefensible as saying that courts need not consider racial discrimination an issue affecting the voting rights of black citizens throughout the entire history of the United States. So, again, I do not consider the Attorney General’s statement either credible or a credit to his office.

    The so-called, pseudo-issue of “illegal immigration” has helped fuel the backlash, culture-war politics of the Republican party for decades now. Illegal immigration provides American business with a virtually inexhaustible source of cheap, docile labor (thus driving down wages and preventing union organizing) while at the same time providing a convenient scapegoat for “white” xenophobia and economic anxiety. So naturally the problem persists because neither business nor the Republican party want a solution to it. The problem exists for its own sake, because, in Sheldon Wolin’s apt phrasing, it “transforms reality into a theological problem admitting of no solution.”

    It does not take a genius to recognize this obvious, blatant and persistent fact of historic culture-war fascism in the United States. While I won’t characterize the mental acuity of those who simply do not see this, on the other hand, it takes at least a modicum of cleverness, if not intelligence, for a willfully blind Republican partisan to overlook the problem he creates while assiduously exacerbating it for political gain. Orwell called this systematized schizophrenia doublethink, but “cynicism” also comes close.

    In the end, the reactionary ideologues on the Supreme Court will do what the Corporate Oligarchy wants them to do. If business has concluded that it no longer needs illegal aliens to supply cheap labor and provide a handy racial/cultural scapegoat, then I can only assume that contracted convict labor (overwhelmingly Latino and Black) from privatized, for-profit prisons has promises to provide a substitute for both.

    If the above makes it appear as though I consider the current Attorney General and Supreme Court a tragic joke upon the former constitutional Republic, then mea culpa

  11. SwM,

    A victory but the war is far from over.


    Moments ago, the Ohio House voted to approve the Ohio budget, quietly closing a chapter in the effort to defund Planned Parenthood in Ohio. The budget bill did not include an amendment that would have stripped Planned Parenthood’s funding for family planning health care, education programs, rape prevention programs, breast and cervical cancer screenings, and infertility treatments. That amendment was added to the bill last week and then “quietly” removed in committee yesterday. The Ohio Senate still has to vote on the bill, and this amendment could be re-inserted at any time.

    Thousands of emails and calls were sent/made regarding this amendment and the teabaggers decided to drop it … for now.

  12. “Attention-whoring nematode Antonin Scalia would like to take a regularly scheduled opportunity to remind America that his is a lifetime appointment and professionalism be damned, on this the occasion of the national attention being paid to the SCOTUS hearing on the constitutionality of Arizona’s “Let’s have a Mexican-hunting party” SB 1070 law, and therefore let you know that illegal immigrants are somewhat like bank robbers. Seems about right, what with how illegal immigrants are constantly stealing money for a living, by working for it at below-market wages.” Wonkette.

  13. SwM,

    That’s Scalia’s idea of being clever. I think the guy is hoping to grab a guest host spot on SNL.

  14. “In his fervent defense Wednesday of Arizona’s right to crack down on illegal immigration, Justice Antonin Scalia likened immigration enforcement to crackdowns on bank robbers.

    “What’s wrong about the states enforcing federal law?” Scalia said during his aggressive questioning of U.S. Solicitor General Donald Verrilli. “There is a federal law against robbing federal banks. Can it be made a state crime to rob those banks? I think it is.”

    The Reagan-appointed justice mocked the Obama administration’s argument that S.B. 1070 unconstitutionally forces the federal government to re-prioritize its enforcement resources and go after undocumented people who are not dangerous.

    “But does the attorney general come in and say, you know, we might really only want to go after the professional bank robbers?” Scalia said. “If it’s just an amateur bank robber, you know, we’re going to let it go. And the state’s interfering with our whole scheme here because it’s prosecuting all these bank robbers.”

    The line drew uncomfortable laughter and some gasps in the courtroom. It’s the sort of analogy that makes it easier for immigrant-rights advocates to accuse their opponents of lacking humanity. The vast majority of undocumented immigrants, advocates often have to point out, are not criminals and are merely trying to make a living for themselves and their families. ” TPM

  15. Funny how you geniuses think this is about fear mongering when the AG explicitly said that racial profiling was not an issue that needed to be considered.

    1. “Funny how you geniuses think this is about fear mongering when the AG explicitly said that racial profiling was not an issue that needed to be considered.”

      I don’t care who said it, bullshit is bullshit. You either understand exactly was this law is about, or you’re a completely gullible voter with a football fan mentality.

  16. mahtso,
    the Illegal immigration rates have decreased since Obama took office, the Obama administration is deporting thousands more than the previous administration, so once again, where is the evil problem that requires a state to allegedly attempt to do the Feds job? There must be a reason that the Native American tribe that you claim is evidence of why the law must be approved, does not support the state law. I wonder why they wouldn’t want to give Arizona crackpot’s like Sheriff Joe any authority to detain “suspected” illegal aliens?

  17. “To answer your question of why Az decided that this group deserves more scrutiny, I think the answer is that there is a perception that this group (illegal immigrants) is causing a disproportionate share of problems in Az.”


    The reason this law was contemplated, passed and signed was political pandering and fear mongering. Illegal immigrants come in because they can find work to perform for “good” Arizonans who are willing to pay them less than minimum wage. If you believe otherwise, I’d like you to know that you can have ownership of and charge tolls on The Brooklyn Bridge for a relative paltry sum. Call me.

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