Today the Supreme Court heard oral arguments in the Arizona immigration case. We start from the proposition that if the administration loses the case — that is, the Arizona law is upheld in total or substantial part — it has every reason to be held responsible for its total abdication of leadership in passing comprehensive immigration reform, as the president promised in 2008.
There is no doubt that the federal government can preempt state law expressly by passing its own immigration reform law. Because it has not, the Supreme Court must decide whether Arizona statute conflicts the current hodgepodge of federal immigration laws or runs afoul of other constitutional provisions.
In an oral argument that ran 20 minutes beyond the scheduled hour, the Justices focused tightly on the actual operation of the four specific provisions of the law at issue, and most of the Court seemed prepared to accept that Arizona police would act in measured ways as they arrest and detain individuals they think might be in the U.S. illegally. And most of the Justices seemed somewhat skeptical that the federal government would have to change its own immigration priorities just because states were becoming more active.
At the end, though, the question remained how a final opinion might be written to enlarge states’ power to deal with some 12 million foreign nationals without basing that authority upon the Scalia view that states have a free hand under the Constitution to craft their own immigration policies. The other Justices who spoke up obviously did not want to turn states entirely loose in this field. So perhaps not all of the four clauses would survive — especially sections that created new state crimes as a way to enforce federal immigration restrictions.
The Post’s Robert Barnes has a similar take, reporting:
Hearing final oral arguments in the case, justices seemed skeptical of the Obama administration’s claim that a requirement that police check the immigration status of those arrested or detained was an impermissible intrusion on Congress’s power to set immigration policy and the executive branch’s ability to implement it.
“What could possibly be wrong,” Chief Justice John G. Roberts Jr. asked Solicitor General Donald B. Verrilli Jr., with Arizona officers simply checking the status of someone detained and giving the information to the federal government.
If the federal authorities do not wish to invoke deportation proceedings against the alien, Roberts said, they don’t have to.
Umm, that’s a pretty strong argument, come to think of it. In essence the administration is reduced to arguing that the state can’t highlight what a feeble job the federal government is doing in enforcing immigration laws.
This is not, by the way, a case pitting conservative justices against liberal ones, one senses. “Justice Sonia Sotomayor told Verrilli that the government’s argument that ‘systematic enforcement’ might violate federal law was ‘not selling,’ ” Barnes writes. You know if the administration can’t convince Sotomayor, it is in deep trouble. The part of the law imposing criminal penalties (which federal law does not) for being in the country illegally or seeking work may be the part of the statute most likely to be struck down.
You do get the sense that once again the administration didn’t really think its arguments through, and that the Justice Department’s view (which spurred the administration to challenge the law) was more political advice than solid legal analysis.
The politics of a loss by the government should be interesting. Unlike Obamacare, the Arizona law is very popular in the state and around the country. The public could well be pleased if it survives. Obama is then cast as the failed challenger to a popular law. (I don’t imagine he’ll be spouting his claptrap that the Supreme Court should be restrained in invalidating a statute, do you?) And to the extent he whines about what a terrible thing Arizona has inflicted on itself (and used as a model elsewhere), he risks losing not only Arizona voters in the presidential election but some more of his own credibility. Where was he in the first two years when he had majorities in both the House and Senate — why no immigration bill? Frankly we don’t even know what sort of comprehensive immigration plan he supports because he’s never told us.
Ironically, the former constitutional law instructor may find his reelection plans screwed up by the Supreme Court and his own over-reaching and misunderstanding of the Constitution.