The Supreme Court Takes On the Arizona Immigration Law

The Supreme Court heard oral arguments yesterday on the suit by the Justice Department against the Arizona immigration law SB 1070.  Those arguments were presented by Paul Clement (former Solicitor General under President George W Bush), representing Arizona, and current Solicitor General Donald Verrilli, both of whom argued the previous high profile case about Obamacare.  The suit is before the Supreme Court as a result of an appeal by the state after the Ninth Circuit Court struck it down.  The case was heard by eight of the nine justices, since Justice Elena Kagan recused herself, having handled the case in the past when she preceded Mr Verrilli as Solicitor General.  That leaves the possibility of a 4-4 tie, in which case the Ninth Circuit decision will stand.

There are four aspects to the law that are in argument:

·         Section 2(B) requires state police to check the legal status of anyone arrested, and allows them to stop and arrest anyone suspected of being an illegal alien.  (The term ‘alien’ offends the sensibilities of some on the Left, but that is the legal term involved and it was even used by Justice Sotomayor.)

·         Section 3 states that it is a crime to be an immigrant in Arizona without legal immigration papers.

·         Section 5(C) makes it a crime for an illegal alien to apply for a job or work in the state.

·         Section 6 allows warrantless arrests of anyone committing a crime that could lead to deportation, even if committed in another state.

The Supreme Court decision, expected toward the end of June, will affect other states that have passed similar laws: Alabama, Georgia, Indiana, South Carolina, and Utah.

The federal argument put forth by the Solicitor General is that Arizona does not have the authority to exercise power within the federal responsibility of national immigration.  Arizona holds that it is not creating law in conflict with the federal provisions, only ensuring that the federal law is carried out: once an illegal is apprehended, the police will notify ICE for further processing.  In fact, the Immigration and Nationality Act of 1952 allows and encourages states to participate in immigration enforcement, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 requires the federal government to respond to queries from states about the immigration status of suspects or persons of interest.

A major contention in Arizona and elsewhere is that the states are being forced by the Feds to expend enormous amounts of their budgets to provide education and welfare to non-tax paying illegal aliens, yet the Feds are blatantly refusing to enforce laws to try to stem the tide of illegal immigration.

The federal case appears comically short to me.  After all, since when is there a sharp distinction as to which sovereign can enforce which laws?  States are expected to assist with enforcement of federal drug laws, for example, and all manner of jurisdictions patrol federal highways to enforce speed laws.  Insistence that a state cannot act in a specific area of law reserved only for the federal government is specious.

In general, it was another embarrassing day for Verrilli, matching his poor performance in arguing for Obamacare (at one point, Justice Ginsburg had to coach him from the bench on how to apply his arguments).  Toward the end of his arguments today, Justice Sotomayor confessed “I’m sorry; I’m terribly confused by your answer.  Your argument – that this systematic cooperation is wrong – is not selling very well.  Why don’t you try to come up with something else?”

A standard critique of the Arizona law from the Left is that it will be used as a convenient excuse for police to harass people in the Hispanic community. That oft-spouted argument has always struck me as absurd, particularly as I was raised in south Texas.  I have had occasion in the last several years of this topic to visit the southern border with Mexico, and each time I make it a point to observe the name tags of the various police officials – local, state, and federal – on those frequent opportunities that have presented themselves. By far the vast majority of the tags that I see involve names such as Rodriguez, Gutierrez, Galvan, Zavala, Esparza, Castillo, Segura . . . well, you get the picture.  In other words, the ethnic demographic of the people involved in law enforcement is practically identical to the ethnic demographic of the population at large.  The Left expects you to believe that the police, by definition, must carry with it the image of some Aryan plot for ethnic cleansing.

At any rate, that line was immediately forestalled when Verrilli, having just begun his arguments, was interrupted by Chief Justice Roberts with “Before you tell us what this case is about, let’s be clear what it isn’t about: no part of your case involves racial or ethnic profiling, right?”  Verrilli replied “No, we do not make that argument.”  Roberts went on to quell another of Verrilli’s points, that a state is seizing a federal law enforcement responsibility: “It is not an effort to enforce federal law.  It is an effort to let you know about violations of federal law.  Whether or not to enforce them is still entirely up to you.”  This would force the hand of the administration in this fiction that it is taking a responsible position on the question of illegal immigration.  They would be forced to incarcerate the illegals in federal facilities, pay the states and local communities to do it for them, or deport them.  The alternative, a catch-and-release programme that is basically happening now, will be more obvious and the administration will be forced to take account for it politically.  As Chief Justice Roberts put it: “It seems to me the federal government just doesn’t want to know who is here illegally.”

The questioning, which went some twenty minutes over the allotted time of one hour, focused to a great degree on Section 2(B) and to a lesser degree on Section 6.  It would seem that the questioning of the Court would indicate that the provisions about Arizona enforcing federal immigration will be looked upon favorably.  The justice most open in his attitude was Justice Scalia, as expected.  After Verrilli tried to make the point that our relations with Mexico would be affected by an Arizona legal focus on Hispanics, Scalia scoffed that we should enforce our immigration laws in ways that are pleasing to Mexico.  When Verrilli argued that mass incarceration of apprehended illegals would be logistically difficult, Scalia replied that the federal government could assist with mass deportations.  Verrilli tried to tie the two together, but Scalia cut him off: “Look, free them from the jails and send them back to the countries that are objecting.  What’s the problem with that?”  I fully expect that Scalia’s attitude holds true with the rest of Verrilli’s point that, simply put, enforcing immigration law is really hard.  Scalia’s reply: try harder.

A 4-4 split that would strike down the law would require a conservative justice to cross over, which is unlikely.  Justice Thomas typically asked no questions, but he is a reliable conservative member on this topic. Justice Alito stepped in during the discussion about how the administration is prioritizing what it considers dangerous offenders: “You seem to be saying that what’s wrong with the Arizona law is that the Arizona legislature is trying to control what its [law enforcement] employees are doing, and they have to be free to disregard the desires of the Arizona legislature for whom they work, and follow the priorities of the federal government, for whom they don’t work,” he said.

Justice Kennedy, who replaced Justice O’Connor as the swing vote, had earlier joined his conservative colleagues in Chamber of Commerce vs Whiting to the effect that Arizona had the right to revoke licenses of employers who knowingly or intentionally employ illegals.   When Verrilli was making his mass incarceration argument, Kennedy snapped “So you’re saying that the government has a legitimate interest in not enforcing its laws?”

Even the liberal Justice Breyer questioned that if “all that happens is a policeman makes a phone call. . . . I’m not clear what your answer is to that.”

I would predict, then, that the Court will uphold (that is, strike down the Ninth Circuit’s decision, as it usually does) at least the provisions of Section 2(B).  It would appear that Section 6, dealing with crimes that can lead to deportation, would be upheld as well since the two provisions can be inter-related.  Section 3 is perhaps less likely – carrying immigration papers is already a federal requirement (8 USC §1304 and §1306) but the question is whether a state can impose its own penalty.  Section 5, which makes it a crime to seek employment or be employed as an illegal, is also unlikely to stand as the Court seems satisfied that the Chamber of Commerce vs Whiting case above sanctions employers rather than employees; and questions in this regard indicated that trying to find a job should not be criminalized.

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Update:  The decision has been reached.