It sounds as if the Supreme Court is poised to throw a big chunk of red meat to partisans of both parties: it is looking at the legality of the Arizona immigration law which some consider draconian and increasingly seems poised to uphold it:
Supreme Court justices on Wednesday appeared highly doubtful of the Obama administration’s objections to a controversial immigration law in Arizona.
The ideologically diverse group of justices pummeled Solicitor General Donald Verrilli Jr. with a morning full of questions, expressing serious doubts to the government’s claim that Arizona cannot require state law enforcement officials to verify a person’s legal status when they’re stopped on suspicion of committing a separate offense.
“You can see it’s not selling very well,” Justice Sonia Sotomayor, the first Hispanic woman to be seated on the bench, said to Verrilli after the solicitor general had delivered a significant portion of his argument. “I’m terribly confused by your answer.”
Chief Justice John Roberts said he didn’t see a problem with that portion of the Arizona law, S.B. 1070. Under the statute, state officials would be notifying federal officials of the immigration status of the person in question. Roberts argued that the power to decide what to do with the that person still lay within the hands of the federal government. He also said the state, in that instance, would be attempting to help the federal government and supersede its role.
A key element to the government’s objections to the Arizona law rests on the argument that the state law conflicts with federal immigration laws already in place.
Verrilli also argued that immigration enforcement matters were entrusted to the federal government by the framers of the country — and not to the states — because they involve matters of foreign policy.
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.
There are signs the United States supreme court is going to side in favour of Arizona’s tough immigration law being challenged by the Obama administration.
In a setback for the president, several justices have voiced support for the state’s effort to crack down on illegal immigration, appearing to reject arguments it was an encroachment on federal responsibility.
“I felt very confident as I walked out of there that Arizona has a right, and I as governor was somewhat assured that I had a right, to protect the citizens of Arizona,” governor Jan Brewer said.
The ruling is likely to set a precedent with Arizona the first of half a dozen states to pass laws allowing police to check the immigration status of anyone they detain and suspect of being illegally in the country.
Mexico and 17 other countries have also filed arguments with the court opposing the law, saying the delegation of authority over such matters to individual states threatens bilateral relations with Washington.
Chief justice John Roberts said the federal government’s arguments could not centre on the civil rights issues but rather on its claim under the constitution to exclusive authority in immigration matters.
He then went on to suggest the law’s most controversial provisions were not an effort to over-ride federal law, but to support it.
Justice Anthony Kennedy, often the swing vote on the court, said Arizona was “cooperating in implementing federal law”.
The Christian Science Monitor:
The Obama administration appears headed for a second potential election-year defeat in a major case at the US Supreme Court, this one over a controversial immigration enforcement law in Arizona.
Just as he did last month in the health care reform case, Solicitor General Donald Verrilli on Wednesday faced a barrage of skeptical questions and comments from the justices.
The aggressive questioning suggests there may be five votes in support of at least some of the four challenged provisions of the Arizona law.
Do you know the facts behind Arizona’s immigration law? Take our quiz.
At one point, Justice Sonia Sotomayor advised the solicitor general, who represents the Obama administration at the high court, that his argument was “not selling very well.” She added: “Why don’t you try to come up with something else?”
One of the provisions of the Arizona law involves checking the immigration status of someone already detained by police.
Federal law requires the government to respond to requests from state and local police concerning a suspect’s immigration status. But Mr. Verrilli said that requiring the same action in the context of the Arizona provision amounted to an attempt by the state to enforce federal law.
“Under the Constitution, it’s the president and the executive branch that are responsible for the enforcement of federal law,” he said.
Aside from the huge policy issues and implications of both of these expected rulings, from a strictly political standpoint when the court issues its rulings expect both parties to try and use it to motivate their political bases. The question will be how the rulings are perceived by swing voters and which part is best able to use the rulings to help get out its base to vote. It’s clear the Supreme Court will be a major political player in this election year.
Joe Gandelman is a former fulltime journalist who freelanced in India, Spain, Bangladesh and Cypress writing for publications such as the Christian Science Monitor and Newsweek. He also did radio reports from Madrid for NPR’s All Things Considered. He has worked on two U.S. newspapers and quit the news biz in 1990 to go into entertainment. He also has written for The Week and several online publications, did a column for Cagle Cartoons Syndicate and has appeared on CNN.