Earlier today the U.S. Supreme Court heard oral argument in Arizona v. United States, the case arising from Arizona’s controversial immigration crackdown S.B. 1070. Judging by what I saw in the courtroom, a majority of the justices appeared willing to take Arizona’s side.
At issue is whether federal immigration law preempts four of S.B. 1070‘s provisions, including Section 2(B), the controversial requirement that state law enforcement officials make a “reasonable attempt” to determine the immigration status of any person they encounter during “any lawful stop, detention, or arrest” if those officials have a “reasonable suspicion” that the person may be in the country illegally.
The federal government argues that these provisions undermine and conflict with the comprehensive immigration regulations established by Congress, and that Arizona’s actions will force the federal government to waste scarce resources on behalf of state priorities, rather than federal ones.
Justice Antonin Scalia quickly emerged as the biggest skeptic of the federal government’s position. Not only did Scalia repeatedly stress his view that the Constitution allows each state “to close its borders to people who have no right to be there,” he dismissed Solicitor General Donald Verrilli’s worry that Arizona’s immigration crackdown will put a strain on U.S. foreign relations. “We have to enforce our laws in a manner that will please Mexico,” Scalia snapped. “Is that what you're saying?”
Chief Justice John Roberts also seemed unwilling to buy many of Verrilli’s core arguments, including the solicitor general’s claim that S.B. 1070 will force the federal government’s hand when it comes to immigration prosecutions. “You say that the Federal Government has to have control over who to prosecute,” Roberts told Verrilli, “but I don't see how Section 2(B) says anything about that at all. All it does is notify the Federal Government, here's someone who is here illegally, here's someone who is removable. The discretion to prosecute for Federal immigration offenses rests entirely with the Attorney General.”
The biggest hurdle for the government will to be to attract one or more of the Court’s five right-leaning justices (Justice Elena Kagan is recused). With Roberts seemingly out of the running, the next, and perhaps most obvious candidate is Justice Anthony Kennedy, who regularly sides with the liberal bloc. Yet Kennedy also subjected the solicitor general to a thorough interrogation this morning. Moreover, Kennedy’s well-known support for federalism principles came to the forefront when asked the solicitor general if “social disruption, economic disruption” stemming from a “flood of immigrants” would allow Arizona or other states “to enact laws to correct this problem?” It seemed clear that Kennedy thinks the states do possess the authority "to correct" such a problem.
Justice Sonia Sotomayor, meanwhile, promptly established herself as the federal government’s strongest ally in the case. But that alliance didn’t stop her from repeatedly chastising the solicitor general when he stumbled during the oral argument. “General, I'm terribly confused by your answer,” she declared at one point. “I don't know that you're focusing in on what I believe my colleagues are trying to get to.” Several minutes later, Sotomayor was even blunter, telling Verrilli that his argument wasn’t “selling very well.” “Why don’t you try to come up with something else?” she instructed.
Unfortunately for the federal government, it may now be too late for that.