Thursday, April 26, 2012

By the Time I Get to Arizona: Part IV - The Supreme Court Strikes Back

We wrote about Arizona's controversial "S.B. 1070" immigration law (aka the "Papers Please" law) in April 2010, July 2010, and April 2011.  So you could say that we've been covering this story for a while.  As a recap to those of you following along at home, back in 2010 the Arizona state legislature decided that it would be a good idea to pass a state law that requires police officers to check the immigration status of any person they come across in their day-to-day police activity if those people "look" like immigrants.  You don't need to be Einstein to see that such a requirement can only lead to one result: racial profiling.  In any event, we predicted that it was only a matter of time before this law was brought before the United States Supreme Court.  Alas, that day has finally arrived!

Yesterday, the Supreme Court heard oral argument to decide the fate of Arizona's immigration law.  Previously, the federal District Court for the District of Arizona ruled in favor of the federal government and issued an injunction to block the law from taking place.  Arizona appealed this decision to the 9th Circuit Court of Appeals but lost again when the 9th Circuit upheld the District Court.  Arizona appealed once again, which brings us up to yesterday.  Now I bring all of this procedural history up for a reason, but we'll come back to that later.  For now, let's break down what is truly at issue here.


Let's start at the beginning.  Article I Section 8 of the U.S. Constitution states that the federal government has the exclusive power to make immigration laws:
"The Congress shall have power to...establish a uniform rule of naturalization."

Article VI Section 2 of the Constitution also makes clear that federal laws trump state laws in case anybody was confused:
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

However, there's a catch.  Under the 10th Amendment, whatever power is not given to the federal government is given to the states:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
So this sets the stage for the conflict between the federal and state government on the immigration issue.  Specifically, there are 4 sections of the Arizona immigration law that were debated before the Supreme Court.  Those 4 sections are:
  •     Section 2(B): requires every Arizona law enforcement officer to verify the immigration status of every person stopped, arrested, or detained if the officer has a “reasonable suspicion” that the person is in the country unlawfully;
  •     Section 3: criminalizes the failure to carry an “alien registration document;'"
  •     Section 5(C): criminalizes undocumented immigrants applying for employment or being employed;
  •     Section 6:  authorizes warrantless arrests if based upon probable cause that a person has committed a deportable crime.
Getting down to the nitty gritty, yesterday's oral argument was interesting.  You basically had Justice Scalia -- a known conservative -- taking the extremely conservative position that the 10th Amendment lets the states do whatever they want when it comes to immigration.  The other 7 Justices (Elena Kagan recused herself) actually got into the merits of which government, the federal or the states, has the power to regulate immigration and whether Arizona's law goes too far.

The usual suspects (Roberts and Alito) lined up with Scalia in attacking the federal government.  Roberts, right out of the gate, had this to say once Solicitor General Verrilli took the podium:
"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...Okay.  So this is not a case about ethnic profiling.”  
Verrilli answered:
“We’re not making any allegation about racial or ethnic profiling in this case."
On the other side of the ideological spectrum, Justices Sotomayor, Ginsburg and Breyer appeared to line up against Arizona's law but they didn't exactly endorse the federal government either.  At one point Justice Sotomayor told a struggling Verrilli:
Putting aside your argument that this -- that a systematic cooperation is wrong -- you can see it's not selling very well -- why don't you try to come up with something else?
Because I, frankly -- as the Chief has said to you, it's not that [Arizona's law is] forcing [the federal government] to change [its] enforcement priorities. [The federal government doesn't] have to take the person into custody. So what's left of your argument?
This is the judicial equivalent of the tap dancing clown at the Apollo theater coming onto the stage to carry away a contestant who is getting booed by the audience.  

Nevertheless, the liberal justices did not seem convinced when Arizona's lawyer, Paul Clement, made his case that section 2(B) (see above) would not result in unusually long detentions for people who are pulled over for minor infractions. Breyer summarized his doubt of the law's effectiveness, saying:
"Now, it says any person who is arrested shall have the person's immigration status determined before the person is released. So I wonder if they've arrested a citizen, he's Hispanic-looking, he was jogging, he has a backpack, he has water in it and Pedialyte, so they think, oh, maybe this is an illegal person. It happens he's a citizen of New Mexico, and so the driver's license doesn't work.  And now they put him in jail. And are you -- can you represent to us -- I don't know if you can or not -- can you represent to us he will not stay in jail, in detention, for a significantly longer period of time than he would have stayed in the absence of section 2(B)?
Do you want to represent that or not?  **Clement answers "No"**  I'm not surprised you don't want to."
And despite Chief Justice Robert's clarification that racial profiling is out, Justice Ginsburg asked Mr. Clement flat out:
But how would the State officer know if the person is removable?
As usual, the man to watch was the "swing voter," Justice Kennedy.  Kennedy came out with fair questions against both parties.  To Arizona, he asked questions aimed to poke holes in its application, such as:
Suppose it takes 2 weeks to make that determination, can the alien be held by the State for that whole period of time?
Likewise, Kennedy hit the federal government up with hypotheticals intended to test their position as well:
"Well, assume these are two hypothetical -- two hypothetical instances. First, the Federal Government has said we simply don't have the money or the resources to enforce our immigration laws the way we wish. We wish we could do so, but we don't have the money or the resources. That's the first -- just hypothetical. Also hypothetical is that the State of Arizona has -- has a massive emergency, with social disruption, economic disruption, residents leaving the State because of flood of immigrants. Let's just assume those two things.
Does that give the State of Arizona any powers or authority or legitimate concerns that any other State wouldn't have?"
This tends to suggest that Kennedy has not made up his mind about the law and is testing out the constitutional principles of the federal government's power under Article I and the state's power under the 10th Amendment.  Where he comes down on this question is anybody's guess but the important thing to remember about Kennedy here is that he is not the swing vote in this case.  Since Kagan has recused herself, there are only 8 Justices hearing this case: 4 conservative and 3 liberal + Justice Kennedy the "swing" voter.  Should this come down to a 4 to 4 vote, then the federal government wins this case because a deadlocked Supreme Court means that the lower court's decision -- in this case the decision made by the 9th Circuit -- remains in place. 

In summary, aside from Justice Scalia, the Justices seemed to be genuinely interested in how Arizona's law would work as a practical matter.  Because this wasn't what some folks expected from the liberal justices, the news wires went haywire with talk about how the liberal justices seemed to be "upholding" Arizona's law.  After reviewing the transcript, I don't know about all of that.   Each side -- with the exception of Kennedy -- seemed to play out how you would expect. There were good hypo's thrown out by both the liberal and conservative Justices that took shots at their respective targets.   Even though Solicitor General Verrilli seemed to (once again) drop the ball, based on the questions that were asked it seems unlikely that one of the 4 liberal Justices will switch sides in favor of Arizona.

1. Answer Justice Kennedy's hypo above about a State's authority to make immigration laws.
2. Do any of the 4 sections strike you as unconstitutional/bad laws?
3. If this law is struck down, what is the solution to effective immigration?
4. Was it wise to take the racial profiling aspect off the table?
5. If Solicitor General Verrilli loses this case and the Affordable Care Act ("Obamacare") case, is it time for him to retire from the legal professional entirely?

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