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Win, lose, or draw? The Arizona v. United States argument in Plain English (with argument audio links)

On Wednesday, the Court heard oral argument in Arizona v. United States, the federal government’s challenge to Arizona’s aggressive efforts to reduce the number of illegal immigrants in that state.  (I previewed the case for the blog in Plain English earlier that day.)  In the days leading up to the argument, a new poll reported that nearly two-thirds of the registered voters surveyed believe that the Court should uphold the law as constitutional.  Now that the oral argument is over, it seems that some provisions of the Arizona law could find similar support on the Court itself.

First up on Wednesday, representing Arizona, was Paul Clement, who served as the Solicitor General during the George W. Bush Administration and is now in private practice.  (Most famously, Clement also recently argued on behalf of the states challenging the Affordable Care Act.)  Clement began by emphasizing the same themes found in his briefs:  because Arizona “bears a disproportionate share of the costs” of illegal immigration, it had found itself with little choice but to act on its own.  With S.B. 1070 it had opted to add its own resources to the “collaborative” effort to enforce federal immigration laws.

Much of Wednesday’s argument focused on Section 2(B) of the Arizona law, which requires police officers to verify the immigration status of each person whom they stop or arrest if there is reason to believe that the person is in the country illegally.  Clement repeatedly reminded the eight Justices (Justice Elena Kagan did not participate) that, even in the absence of S.B. 1070, police officers can call the federal government to enquire about someone’s immigration status.  It would be odd, he continued, for the exact same call to be prohibited merely because Arizona now requires police to make it.

With Justice Kagan recused, the federal government would almost certainly need to get the votes of all three of the Court’s more liberal Justices – Ginsburg, Breyer, and Sotomayor – and pick up at least one more Justice to keep Section 2(B) from going into effect.  (With only eight Justices, the lower court’s decision would stand if the Court were to divide four to four.)  But after Wednesday’s argument, it is not at all clear that the federal government can count on even the three more liberal Justices.  Although those Justices pressed Clement on Section 2(B), their primary concern seemed to be whether the verification requirement would cause arrestees to be held longer than they would be if the law were not in place.  Clement assured them that it generally would not.  Moreover, he told them, even if police officers learned that they were holding someone who was an illegal immigrant, they would go ahead and release him if the federal government indicated that it did not want to detain him and there was no other reason to keep him in custody.  This explanation seemed to satisfy the three more liberal Justices – so much so that when Solicitor General Don Verrilli later told the Court that Section 2(B) would interfere with the federal government’s prerogative to decide which illegal immigrants it would focus on removing, Justice Sonia Sotomayor told him that his argument “was not selling very well” and suggested that he try “to come up with something else.”

The Court’s more conservative Justices were even more skeptical of the government’s arguments.  Justice Antonin Scalia left little doubt that he would vote to uphold Section 2(B); he agreed that the federal government has the authority to say who is allowed to stay in the United States, but he was downright scornful of the idea that Arizona was helpless to do anything about someone who was, under the rules created by the federal government, there illegally.  Other Justices were less openly hostile to Section 2(B) but still signaled that they too were likely to uphold it:  the Chief Justice, for example, characterized Section 2(B) as simply “an effort to let [the federal government] know about violations of federal law.  Whether or not to enforce them,” he continued, “is still entirely up to” the government.

With most of the argument focusing on Section 2(B), it is harder to predict how the Court might rule on the remaining three provisions of S.B. 1070.  There was virtually no discussion of Section 6 of the law, which allows a police officer to arrest someone without a warrant if the officer has reason to believe that the individual may have done something that could get him deported.

The federal government seemed to fare better with its challenges to Section 3, which makes it a crime to be in Arizona without proper immigration papers, and Section 5, which makes it a crime for an illegal immigrant to seek or take work in the state.  In addition to Justices Sotomayor and Ginsburg, the Chief Justice pressed Paul Clement to explain why Section 5 wouldn’t be preempted because it goes beyond the punishments that federal law imposes on illegal immigrants who seek work to “impose[] some significantly greater sanctions.”  And Justice Alito asked Clement a series of questions about how Section 3 would work, particularly when there may be some people – for example, an individual seeking asylum in the United States – whom the federal government would not want to deport, but who may not have proper immigration papers.

We probably won’t get a decision in the case until late June, shortly before the Court breaks for its summer recess.  Will it uphold all four provisions of S.B. 1070, or – as seems possible – will both sides be able to claim victory?  And what effect, if any, will the Court’s decision have on other states’ immigration laws and the presidential election?  Stay tuned.

Recommended Citation: Amy Howe, Win, lose, or draw? The Arizona v. United States argument in Plain English (with argument audio links), SCOTUSblog (Apr. 27, 2012, 5:44 PM),