April 25, 2012

"No part of your argument has to do with racial or ethnic profiling?" asked Chief Justice Roberts, and the SG agreed.

The Arizona immigration case is emphatically not about the issue that seems to be all people opposed to the law argue about in the political sphere.

As in the Affordable Care Act case, it was Solicitor General Donald B. Verrilli and former Solicitor General Paul D. Clement arguing on opposite sides. Unlike in that case and because the law under attack is a state law, Verrilli is arguing against the choice of the democratic majority, and Clement is arguing to uphold it.
Mr. Clements [sic] said the state was making an effort to address an emergency situation with a law that complemented federal immigration policy. “Arizona borrowed the federal standards as its own,” he said.

Mr. Verrilli countered that Arizona’s approach was in conflict with the federal efforts. “The Constitution vests executive authority over immigration with the national government,” he said.
That is, it's a federalism case, not a constitutional rights case. The question is the allocation of power between the federal and state government. (The Affordable Care Act case is also a federalism, and not a rights case, even though in the political sphere, people opposed to the individual mandate concentrate on the imposition on the individual, not misallocation of power as between the federal and state governments.)
“What does sovereignty mean if it does not include the ability to defend your borders?” Justice Antonin Scalia asked.

Chief Justice Roberts said the state law merely requires that the federal government be informed of immigration violations and leaves enforcement decisions to it. “It seems to me that the federal government just doesn’t want to know who is here illegally and who’s not,” he said....

Chief Justice Roberts, writing for four of the justices in the majority, said the state law under review “simply seeks to enforce” a federal ban on hiring illegal workers. “Arizona went the extra mile,” he wrote last year, “in ensuring that its law closely tracks” the federal one.
That was from the Adam Liptak article in the NYT. Here's Lyle Denniston at SCOTUSblog:
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....

The Court’s three more liberal Justices — Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor — offered what appeared to be a less than enthusiastic support for the federal government’s challenge....
Kagan has recused herself, by the way. It seems rather obvious that Arizona will win this case. The first quote in Liptak's article is Sotomayor saying to Verrilli: "You can see it’s not selling very well."

38 comments:

Scott M said...

It seems rather obvious that Arizona will win this case.

It certainly sounds like that. Does this then precipitate a torrent of similar laws from other states? How many comments do you suppose we're going to have before someone mentions the supposed (and only recently reported) net negative Mexican immigration, in other words, catagorizing the Arizona law and all such legal immigration laws as "fixes without problems"?

Chip S. said...

Black robes > white robes.

Nathan Alexander said...

Cool! Now there will be new lefty outrage! I was getting tired of hearing the inane and incorrect jabber about Citizens United ruling being that corporations are people.

chickenlittle said...

The Court’s three more liberal Justices — Stephen G. Breyer, Ruth Bader Ginsburg and Sonia Sotomayor — offered what appeared to be a less than enthusiastic support for the federal government’s challenge.

Breyer's favorite flavor is vanilla.

Scott M said...

Now there will be new lefty outrage!

Were you under a rock a couple weeks ago? Outrage, pearl-clutching, and tut-tutting in copious amounts.

Sorun said...

"You can see it’s not selling very well."

It's another tough sell.

David said...

But .... but ...... but ....... it's not fair!

Hagar said...

I thought the Justice Department's position was that "if we choose not to enforce Federal laws, that is our business and none of yours!"

Michael Haz said...

Have you considered that the SG may have been told to not win this case, nor the ObamaCare case, in order to boost Obama's possibility of being re-elected?

The SG's bumbling may be an act. Did he bumble in court before becoming the SG? Probably not, or he wouldn't have been appointed SG.

I wouldn't put it past Eric Holder's DOJ to puropsefully throw a case if it helped Obama to do so.

edutcher said...

Apparently, Verilli isn't doing any better with this than he did with ZeroCare.

He must be one of Holder's people.

Chip S. said...

Milli Verilli.

Pogo said...

OT: I cannot help but notice by their avatars that Scott M and Sorun are two schools of thought on proper sitting techniques.

Both methods have advantages.

Louise B said...

I like Albuquerquw's law. Everyone arrested has their immigration status checked; doesn't matter what color you are. An arrest = immigration check.

Scott M said...

I cannot help but notice by their avatars that Scott M and Sorun are two schools of thought on proper sitting techniques.

The difference is simply explained. We were trained in two completely different dojos. I don't know about Sorun's, but there is no crying in my dojo.

RonF said...

How many comments do you suppose we're going to have before someone mentions the supposed (and only recently reported) net negative Mexican immigration, in other words, catagorizing the Arizona law and all such legal immigration laws as "fixes without problems"?

As a counter, point out that "Net negative" doesn't mean that no one's coming in illegally - it just means that there are fewer coming in illegally than there are already illegally resident aliens leaving. The ones coming in are still a problem and are still to be sent home. What the new law will do is to drive that negative number higher.

"The SG's bumbling may be an act. Did he bumble in court before becoming the SG? Probably not, or he wouldn't have been appointed SG."

Don't forget that this is the Administration that made a tax cheat Secretary of the Treasury. Never ascribe to malice what can be explained by simple incompetence.

Original Mike said...

"Apparently, Verilli isn't doing any better with this than he did with ZeroCare.

He must be one of Holder's people."


I'd cut Verilli some slack. The positions he's been called upon to defend are bullshit.

David said...

No matter how Verelli goes about putting on the lipstick, the laws he is defending are still pigs. He did not have any hand in passing Obamacare, and I doubt that the made the decision to try to overturn the Arizona.

David said...

law

The Drill SGT said...

“It seems to me the federal government just doesn’t want to know who’s here illegally,” Chief Justice John G. Roberts Jr. said at one point.

The Arizona law requires all police to check with federal officials if they suspect someone is in the country illegally. The government argues that is OK when it’s on a limited basis, but said having a state mandate for all of its law enforcement is essentially a method of trying to force the federal government to change its priorities.


seems to me that the state wants to be able to report an illegal to the Feds. Then he goes on the books as a Fed problem, If the Feds say they dont want him and he goes out a kills some local nun, likeone VA illegal did recently, the state wants to be able to point to the Feds. Feds dont like that...

traditionalguy said...

The question is always about Obama's power of ruling without interference from other powers that try to check and balance him.

Once Ruler Obama has Decreed no more enforcement of Federal Immigration Law, then Rebel States and Rebel Courts acting on a Rebel Congress's enacted laws that pre-date Obama's Veto Threats and ignore his and Reid's secret Rulership by the Party in Power Amendment of 2008 must be totally irrelevant.

Will SCOTUS rise up and reclaim its raison d'etre? Yes it will. Wise Latinos educated at Princeton value our institutions.

Bob Ellison said...

The force is weak with legal lefties lately. Fox News Channel had an arguing-heads segment the other day with a lawyer on the left and a lawyer on the right. The leftward one said we couldn't have fifty states with different immigration laws kept saying that cops shouldn't be able to stop people on suspicion of being illegal aliens. The rightward lawyer said "there isn't a due process argument here!" Lefty behaved as though she didn't understand or didn't believe what he was saying.

Bob Ellison said...

Bad edit there...delete "we couldn't have fifty states with different immigration laws". She did say that repeatedly, and that seems to be the Feds' primary argument. Also weak, though not as bad as claiming an argument that isn't even present.

Hagar said...

We do need a new set of immigration laws. The present ones still echo the old intent to keep the ethnic ratios in the country corresponding to those existing in 1913, etc., "lotteries" for letting in some "lucky ones" from countries not otherwise eligible, etc., while the big tech firms go to Congress and get special permits to import "technically skilled" employees from India, Pakistan, or wherever, for their firms, which must then be something like indentured servants.
This is not a good policy for the country, nor "fair" or "humanitarian" or anything else that can be defended on rational grounds.

Hagar said...

We do need a new set of immigration laws. The present ones still echo the old intent to keep the ethnic ratios in the country corresponding to those existing in 1913, etc., "lotteries" for letting in some "lucky ones" from countries not otherwise eligible, etc., while the big tech firms go to Congress and get special permits to import "technically skilled" employees from India, Pakistan, or wherever, for their firms, which must then be something like indentured servants.
This is not a good policy for the country, nor "fair" or "humanitarian" or anything else that can be defended on rational grounds.

Bender said...

The Arizona law does not conflict with federal law one tiny bit.

What it does conflict with is the Obama policy of not enforcing federal law.

Inasmuch as the executive branch exists to execute the laws, rather than ignore the laws, Obama's abdication of his constitutional duty to enforce the law is hardly a basis to strike down the Arizona law.

Bender said...

It is a very strange argument that the government should be allowed to prioritize and not be burdened with having to follow the law.

Under hapless Verrilli's view, could a law be passed outlawing people calling 911 because having to respond would divert resources from other areas that government would prefer to focus on?

Bender said...

A repeat question here (also asked in light of the Hosanna-Tabor and Sackett cases) --

Will the Administration's gross overreach and outlandish arguments in this case color the Court's views with respect to the government's position on ObamaCare? After a while, does the Administration lose all credibility by spouting patent BS with the Court?

Methadras said...

Fairness. The new sledgehammer of the left.

Alex said...

What we need to do is throw out Obama and the Democrats and elect MEN who will enforce our laws.

bgates said...

Unlike in that case and because the law under attack is a state law, Verrilli is arguing against the choice of the democratic majority

I am confident the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically-elected legislature. That an unelected group of people would somehow overturn a duly constituted and passed law.

bagoh20 said...

Barristerial cannon fodder.

Paul said...

OMG!!!

Ann, does that mean the LAWS OF THE LAND will actually be ENFORCED?

So it takes the states to ENFORCE federal law cause the feds won't bother?

Now isn't that funny!

Paul said...

Michael Haz,

Sadly I once thought Jimmy Carter must have a plan to get the hostages out. Well he did.. half ass of a plan that got alot of people killed.

But no, Obama's legal staff didn't dumb it. Their whole argument as the best they could do with a stupid objection.

A big F is all Obama and crew rate.

BarryD said...

"I'd cut Verilli some slack. The positions he's been called upon to defend are bullshit."

Exactly.

Blaming Verilli is shooting the messenger. The only way I would think otherwise would be if he really thought that his positions were shoe-ins to prevail. Whether or not he did, he will never admit the truth in public. Unless verifiably authentic e-mail exchanges between Verilli and others in DOJ show up on Wikileaks or something, we will never know.

cubanbob said...

Bob Ellison said...
Bad edit there...delete "we couldn't have fifty states with different immigration laws". She did say that repeatedly, and that seems to be the Feds' primary argument. Also weak, though not as bad as claiming an argument that isn't even present.

4/25/12 1:59 PM

There aren't 50 separate immigration laws or potentially 50 separate immigration laws. There are one set of federal immigration laws that could be enforced by the various states, the state being champs for providing the feds the resources they lack to uphold the federal immigration laws.

Bill said...

"Unlike in [the ACA] case ... Verrilli is arguing against the choice of the democratic majority, and Clement is arguing to uphold it."

But, as I understand it, the polls show that a majority wants at least the ACA's mandate to be struck down. So Verrilli is arguing against the majority position in both cases.

Bender said...

Poor Verrilli --

GENERAL VERRILLI: Mr. Chief Justice, and may it please the Court:
CHIEF JUSTICE ROBERTS: Before you get into what the case is about, I'd like to clear up at the outset what it's not about. No part of your argument has to do with racial or ethnic profiling, does it? I saw none of that in your brief.
GENERAL VERRILLI: That's correct.
CHIEF JUSTICE ROBERTS: Okay. So this is not a case about ethnic profiling.
GENERAL VERRILLI: We're not making any allegation about racial or ethnic profiling in the case. . . .
(11 pages later)
JUSTICE SOTOMAYOR: . . . if the government says, we don't want to detain the person, they have to be released for being simply an illegal alien, what's wrong with that?
GENERAL VERRILLI: Well . . . I think there are three. The first is the -- the Hines problem of harassment. Now, we are not making an allegation of racial profiling; nevertheless, there are already tens of thousands of stops that result in inquiries in Arizona, even in the absence of S.B. 1070. It stands to reason that the legislature thought that that wasn't sufficient and there needed to be more. And given that you have a population in Arizona of 2 million Latinos, of whom only 400,000 at most are there unlawfully --
JUSTICE SCALIA: Sounds like racial profiling to me.

Lucien said...

This grew out of the US government's suit based on preemption.

The "profiling" argument could only be in order in an "as applied" challenge to the statute, no? Since enforcement of the statute has been enjoined since before it became effective, no enforcing officer has had a chance to apply it in an improper way.

Those folks, who include La Lithwick over on Slate, who want to address "as applied" style arguments are doing so based on stereotypical and speculative assumptions about what all those racist yahoo Arizona cops are just bound to do.