“You can see it’s not selling very well. Why don’t you try to come up with something else?”
That candid quote of the day comes from Supreme Court Justice Sonya Sotomayor, responding to solicitor general Donald Verrilli’s argument before the High Court on Wednesday that a provision of a controversial Arizona law requiring police officers to ask for immigration papers during routine stops interferes with federal enforcement. Sotomayor’s skepticism, echoed by both liberal and conservative justices alike during 80 minutes of oral arguments, was a strong indication that a block placed by lower courts on four provisions of the law known as S.B. 1070 is unlikely to stand in its entirety.
The Supreme Court’s consideration of Arizona’s immigration crackdown is the second case in a month to pit Verrilli against the talented Paul Clement, who argued against the constitutionality of President Obama’s health reform law on behalf of 26 states in March; it’s also the second case in a month to weigh legislation that’s playing a charged role in national politics. S.B. 1070, passed in 2010 by Arizona’s Republican statehouse, has inspired similar laws in a handful of other states and drawn legal action from the Obama Administration. Accusations that the law promotes racial profiling has also put spark to tinder, though that charge is not under consideration in the Supreme Court.
Instead, Wednesday’s hearings focused primarily on whether the law interferes with the primacy of federal immigration policy by doling out harsh punishments under state jurisdiction and compelling local law enforcement to report immigration violations to federal officials. The latter action, Verrilli argued, would disrupt federal discretion on when to enforce immigration law. That was the argument that the justices–barring Elena Kagan, who recused herself from the case because she worked on the case as solicitor general, and Clarence Thomas, who (as usual) did not speak–seemed to have trouble swallowing. Clement argued that the law merely applies federal standards and takes necessary, additional action in the face of unique criminal and economic disruptions caused by illegal immigration in Arizona.
Arguments over other blocked provisions–empowering police to arrest undocumented immigrants without a warrant, and making it a state crime to work without documentation or for any immigrants not to carry papers — were limited, and the final decision could easily end up split, in which asking for documentation during stops could go ahead other provisions remain barred. If any vote is 4-4, the justices won’t issue an opinion on that measure and the lower court’s ruling blocking it will stand.
Sotomayor’s remark about Verrilli’s salesmanship was the grabbiest part of the proceeding, especially after the solicitor general seemed to fumble during health care arguments in March. And while reading too deeply into any round of oral arguments would be foolish, as SCOTUSblog’s Lyle Denniston writes, the Arizona decision’s importance lies in the scope of immigration enforcement powers the court is comfortable ceding to the states. ”The government can set forth the rules concerning who belongs in this country. But if, in fact, somebody who does not belong in this country is in Arizona, Arizona has no power? What does sovereignty mean if it does not include the ability to defend your borders?” Antonin Scalia asked during Wednesday’s hearings. We’ll have a better answer to that question in June, when the court hands down its opinion.