Last Call

The conservatives at SCOTUS -- and more than a few of the liberals -- had some rough questions for the Solicitor General today regarding oral arguments on Arizona's "Papers, Please!" immigration law today.  Does Arizona have the power to enforce its own immigration laws that go above and beyond federal limits?

"If, in fact, somebody who does not belong in this country is in Arizona, Arizona has no power?" asked Justice Antonin Scalia. "What does sovereignty mean if it does not include the ability to defend your borders?"

Even liberal Justice Sonia Sotomayor told the federal governments' lawyer that key parts of his arguments were "not selling very well."

Federal courts had blocked four elements of the state's Support Our Law Enforcement and Safe Neighborhoods Act, known as SB 1070.

While intense oral arguments took place among the justices, outside there were competing demonstrations on the courthouse plaza, with the law's opponents saying it promotes discrimination and racial profiling. Backers say illegal immigration has created public safety and economic crises.

At issue is whether states have any authority to step in to enforce immigration matters or whether that is the exclusive role of the federal government. In dry legal terms, this constitutional question is known as pre-emption.

Paul Clement, lawyer for Arizona, told the high court the federal government has long failed to control the problem, and that states have discretion to assist in enforcing immigration laws.

But the Obama administration's solicitor general, Donald Verrilli, strongly countered that assertion, saying immigration matters are under the federal government's exclusive authority and state "interference" would only make matters worse.

The Obama administration exclusively argued this as a Supremacy Clause case, with the Constitution spelling out that the federal government has jurisdiction over all matters regarding federal borders.  It appears SCOTUS has more than a few problems with this.  There's also the major issue that Justice Kagan recused herself in this case, setting up a 4-4 tie as a very possible scenario (meaning that the lower court ruling would stand in Arizona, but that other states would be able to cite the SCOTUS decision to make their own laws.)  Lyle Denniston:

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.

 We'll see how this falls out, but I'm thinking that this may get very messy if the court sides with Arizona here.  Depending on how broad the written opinion is, things could get out of control fast if it goes against the US here.