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Argument recap: A choice between radical and reasonable?


With Justice Antonin Scalia pushing the radical idea that the Constitution gives states clear authority to close their borders entirely to immigrants without a legal right to be in the U.S., seven other Justices on Wednesday went looking for a more reasonable way to judge states’ power in the immigration field.  If the Court accepts the word of Arizona’s lawyer that the state is seeking only very limited authority, the state has a real chance to begin enforcing key parts of its controversial law — S.B. 1070 — at least until further legal tests unfold in lower courts.

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 of the argument in Arizona v. United States (11-182), 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 vulnerable may be sections that created new state crimes as a way to enforce federal immigration restrictions.

If the Court is to permit Arizona to put into effect at least some of the challenged parts of S.B. 1070, there would have to be five votes to do so because only eight Justices are taking part (Justice Elena Kagan is out of the case), and a 4-4 split would mean that a lower court’s bar to enforcing those provisions would be upheld without a written opinion.   It did not take long for Justice Antonin Scalia to side with Arizona, and it was not much later that Chief Justice John G. Roberts, Jr., showed that he, too, was inclined that way.   Justice Clarence Thomas, who said nothing during the argument, is known to be totally opposed to the kind of technical legal challenge that the government has mounted against S.B. 1070.

That left Justices Anthony M. Kennedy and Samuel A. Alito, Jr., as the ones that might be thought most likely to help make a majority for Arizona.  Their questioning, less pointed, made them somewhat less predictable.  However, they did show some sympathy for the notion that a border state like Arizona might have good reasons for trying to deal with what Kennedy called the “social and economic disruption” resulting from illegal immigration.

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, although they definitely were troubled that S.B. 1070 might, in practice, lead to long detentions of immigrants.  They wanted assurances on the point, and they were offered some by Arizona’s lawyer, Washington attorney Paul D. Clement.

Clement’s entire strategy (aside from an emotional plea that Arizona had to bear the brunt of the wave of illegal and often dangerous immigrants) was to soften the seemingly harder edges of the 2010 state law that set off a wave of new state and local legislation to control the lives of foreign nationals living illegally in the U.S.   To each question Wednesday about how S.B. 1070 would work if put into effect, Clement pared down the likely impact and insisted that Arizona was only seeking to be a cooperative junior partner in enforcing federal laws and policies against undocumented immigrants.

But beneath the reassuring demeanor, Clement’s argument had a stubborn bottom line.   He was not willing to endorse suggestions that the Court write its opinion in a way that would put some fairly tight limits on how Arizona chose to enforce specific provisions of its law — especially, the detention power that the state wants to hand to police officers when they stop anyone they think may be in the state illegally.   He would, he said, embrace an opinion that said the Court would assume that Arizona police would not abuse the power they were given.

Assuming that the Court does allow most, if not all, of S.B. 1070’s four sections to go into effect, that still would not amount to final constitutional clearance for any of the sections.  The case reached the Justices in a preliminary state, and there will be ongoing challenges in lower courts when the case is returned to them.   Moreover, there are challenges to some of those provisions that the Court did not consider on Wednesday, because they are not part of the federal government’s legal assault on the Arizona statute.

The most important of those remaining challenges is the claim that at least two of the four sections give police authority to arrest and detain people just because they look like foreigners — in a phrase, “racial profiling.”  While some of the amici in this case did raise that in their briefs, the federal government has studiously avoided the claim.   And, the moment that Solicitor General Donald B. Verrilli, Jr., took his place at the lectern to make the U.S. challenge, Chief Justice Roberts sought to make sure that he did not talk about “racial profiling.”

Roberts said: “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.”  Verrilli said that was correct.  But the Chief Justice wanted to be sure: “Okay.  So this is not a case about ethnic profiling.”  The Solicitor General answered: “We’re not making any allegation about racial or ethnic profiling in this case.”

Although no observer could be sure what motivated Roberts to make that point, he was either trying to keep that question out of the case because it would remain an issue in lower courts, or else he was seeking to head off criticism that, if the Court did allow Arizona to enforce S.B. 1070, the Court was not endorsing racial or ethnic profiling.

Justice Scalia also seemed to want to leave that issue aside.  When, later in the argument, Verrilli began making a point about the Latino population that would be affected by the Arizona law, Scalia interrupted to say that that sounded like he was discussing racial profiling.  Verrilli did not pursue the point.

When the Solicitor General then launched his argument, it was Arizona’s motive that he attacked frontally: its aim, he said, was to adopt its own immigration controls with the aim of driving illegal immigrants out of the state.   The Constitution forbids that, he argued.   When Justice Sonia Sotomayor asked him to reply to Justice Scalia’s earlier suggestion that Arizona could bar all illegal immigrants from the state, Verrilli again said the Constitution would forbid that.

But his national supremacy argument seemed regularly to falter, because the Justices as a group seemed much more interested in parsing just how the Arizona law would work in tandem with or, potentially, in conflict with federal policy.   Verrilli, in fact, never quite got his point across about federal supremacy, and that showed in an exchange between him and Justices Alito, Kennedy, and Sotomayor.

Alito said he could not understand why Verrilli seemed to be saying that Arizona could not instruct its own state employees on how they should enforce the state’s own law, but rather that they should only do what federal authorities wanted them to do even though they don’t work for the federal government.   The question seemed to indicate that Alito did not see that Verrilli was arguing that, since it was federal law that was at issue, federal priorities should govern.

Verrilli replied that, if a state wanted to cooperate in immigration enforcement, they needed only to bring to federal attention the fact that a given illegal immigrant was in the U.S.   But Kennedy shot back that Alito was only talking about whose law state employees should enforce as a state priority.  The Solicitor General then repeated the idea that the federal priorities should govern what state employees did, in the immigration context.

At that point, Justice Sotomayor said that the government argument left her “terribly confused.”  She said she could not understand what was wrong with a system in which, if federal officials are contacted about an arrested immigrant and said they did not want that person detained, that person would have to be released.   She was relying, of course, on attorney Clement’s assurance that that was what would happen if a federal official waved off the need for an immigrant to be detained further.

Chief Justice Roberts, though, went the furthest to try to discount Verrilli’s core argument about the disruption of federal immigration enforcement if Arizona were allowed to have its own style of enforcing immigration law.  All that Arizona’s law required, Roberts suggested, was that a state officer let the federal government know that there was an illegal immigrant in its midst, and that did not force the government to do anything; it could enforce its ban on such immigrants or not.  Somewhat sarcastically, the Chief commented: “If you don’t want to know who is in this country illegally, you don’t have to.”

Moreover, the Chief Justice said, an arrest of an immigrant by an Arizona police officer simply had nothing to do with immigration law.  It only becomes an issue of immigration law, Roberts said, when the state asks a federal official about the legal status of that arrested person.

It was not apparent that any of the Justices was inclined to come to Verrilli’s rescue.  Even Justice Sotomayor advised him, bluntly, that his main argument was”not sellling very well; why don’t you try to come up with something else?…What’s left of your argument?”

In fact, it appeared, overall, that the only way an observer could find that any part of the Arizona law was at risk was to read between the lines, relying upon some hints that maybe the state had gone too far by creating its own new brand of crime for someone who violated a federal immigration provision.   The separate crimes provisions of S.B. 1070, though, drew very little conversation.





Recommended Citation: Lyle Denniston, Argument recap: A choice between radical and reasonable?, SCOTUSblog (Apr. 25, 2012, 4:30 PM),