Arizona's Immigration Law Heads to the Supreme Court

"As long as there is not a direct conflict, which the federal government did not do a very good job of pointing to today, the Arizona law gets to stand under the Preemption Doctrine," says Reason's Damon Root, who was at the Supreme Court during Wednesday's oral arguments surrounding Arizona's controversial immigration law. "The federal government is saying that 'we have the power to stomp out all of the state experiments in immigration law enforcement.'"

Much like the Health Care arguments before the Court in March, Root does not see this as a good day for the Obama administration, in part due to their Solicitor General Donald Verrilli's poor performance. "At one point," Root explains "Justice Sotomayor interrupted [Verrilli] and said 'look, I am terribly confused by what you are saying.'"

Runs about 3.50 minutes.

Produced by Meredith Bragg.

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Comments

[Episiarch]

"look I am terribly confused by what you are saying."

I think Verrilli is too.

[MikeP]

The poor guy has to work for the most liberal president in 40 years in front of the most conservative court in 80 years.

Think he knows it?

[Tman]

I don't understand why Verilli is taking this beating. He got embarrassed during the Obamacare opening arguments and now he's just lost with this one to the point that even the Wise Latina can't bail him out.

Dude probably would be happy chasing ambulances right now.

[Brutus]

You'd think that, after looking totally unprepared and inept defending Obamacare, he'd have his whet up on the subject this time around.

Maybe he just doesn't have a case.

[Episiarch]

Ding ding ding!

[Ron]

Also he just may not be vary good at his job.

[widget]

Verrilli? We're talkin' about Italians or Mexicans here? They're both always confused, but not always 'bout the same thing.

[PapayaSF]

I understand how federal law can trump state law. I can't understand how it is somehow a violation of federal law or the Constitution for a state to enforce federal law.

[Lyle]

Obama is just trying to find a way to not enforce Federal laws he disagrees with for political reasons. He is trying to get legal cover for not upholding Federal law.

[Peter L]

And yet he says he is only pushing drug crack-downs because it is the law. Very selective in his reasoning.

[Copernicus]

Another reason to impeach him? He did take an oath of office in Jan., 2009.

[ned]

Exactly...this opens up the gates to enforce federal tax laws or the individual mandate if its survives.

[Concerned Citizen]

The Feds only have jurisdiction over a ten mile square area, aka D.C.

[Ron]

There have been other cases where the Federal government has said that states can have stricter laws than the Federal laws they just can't be less restrictive. California proved this in court with it's stricter smog regulations. So if past court case are used to set precedent then Arizona wins.

[Lyle]

Obama is like losing every battle he fights.

[Ken Shultz]

Part of me would like to think that's true. But another part doesn't want to count his chickens before they're hatched.

Then there's the part that feels bad when it's a good thing that an American president is feckless.

Then there's the part of me that's worried that if he keeps losing big battles, it'll make him more likely to win another four year term.

It may take us decades to undo the damage he did after the first four years.

[Old Mexican]

"Justice Sotomayor interrupted and said 'look, I am terribly confused by what you are saying.'"

Translation: Look, as the Wise Latina I'll always follow the sound of Obama's drum, but I will look ridiculous if I entertain the nonsense you're spewing, you nitwit!"

[juris imprudent]

Wait a minute, hasn't Obama been going on about how the Court shouldn't overturn popularly enacted laws?

I am shocked to learn that the President [and Messiah] has been talking out both sides of his mouth (not to mention out his ass).

[James Anderson Merritt]

Under the Articles of Confederation, States handled their own immigration and naturalization. Under the Constitution of 1787, the Feds were given naturalization authority, but no mention was made about prohibiting State authority over immigration, or explicitly giving that power to the Federal government. So how is it that a State power became exclusively a Federal one, absent any direct mention of it in the Constitution? Has anybody asked this question in oral argument yet?

[DesigNate]

Interesting. I always assumed the feds had authoritah over immigration vis a vis naturalization authoritah.

[James Anderson Merritt]

DesigNate: Pay attention to what I found in the oral argument transcript. I think your use of the word "assumed" is very apt, and you're not the only one who goes there:

From http://www.supremecourt.gov/or.....11-182.pdf

pg. 33:

the very first provision of the
22 statute declares that Arizona is pursuing its own policy
23 of attrition through enforcement and that the provisions
24 of this law are designed to work together to drive
25 unlawfully present aliens out of the State.

p. 34

1 That is something Arizona cannot do because
2 the Constitution vests exclusive --
3 JUSTICE SOTOMAYOR: General, could you
4 answer Justice Scalia's earlier question to your
5 adversary? He asked whether it would be the
6 Government's position that Arizona doesn't have the
7 power to exclude or remove -- to exclude from its
8 borders a person who's here illegally.
9 GENERAL VERRILLI: That is our position,
10 Your Honor. It is our position because the Constitution
11 vests exclusive authority over immigration matters with
12 the national government.
13 JUSTICE SCALIA: All that means, it gives
14 authority over naturalization, which we've expanded to
15 immigration. But all that means is that the Government
16 can set forth the rules concerning who belongs in this
17 country...

(see reply post following)

[James Anderson Merritt]

Notice that Scalia admits that the authority over naturalization has been EXPANDED to immigration. But how? There of course have been various congressional statutes that vest immigration control in this government agency or that, and various supreme court cases (notably several involving Chinese immigrants in the mid-to-late 1800s) that have upheld the actions of those agencies. But if you look at those decisions, you get the very clear sense that the argument is "because the world doesn't make sense any other way, and so we affirm."

Usually, when a Justice says "we," he or she is speaking of the court. And if so in this case, Scalia is right. The case law I allude to above EXPANDED the naturalization clause via an argument made up out of whole cloth, which doesn't really seem to fit well with the rest of the Constitution.

(continued in reply)

[James Anderson Merritt]

By this, I mean that immigration authority was described by the court as an INHERENT power of a sovereign nation. The natural repository of that power was deemed by the court to be the national government. (Note that none of this bears directly on the constitutional "naturalization" authority -- indeed, there is no attempt to reconcile the assertion of immigration authority with the text of the constitution, only with the idea of "inherent" powers.) But this doesn't square with the fact that many other traditional -- considered by many to be "inherent" -- sovereign powers, including taxation, coining of money and emission of bills of credit, making war / repelling invasions, and naturalization, just to name a few, were explicitly mentioned in the constitution through clauses that granted such powers to the federals or the States, OR denied them to the federals or the States, or some combination of those options. Given all that specificity in other key areas of government power, not to mention the 10th Amendment, and the established tradition of States handling their own immigration chores (as alluded to in Article I, Section 9: "The Migration of Importation of such Persons as any of the States now existing shall think proper to admit..."), it is very odd that the immigration power should disappear from the State basket at some point and, POOF, reappear as an exclusive power in the Federal basket; also that this miraculous translation would never be questioned again.

[James Anderson Merritt]

What's interesting to me is that Verrilli and his office take the position that the CONSTITUTION vests the Federal government with exclusive immigration power, when the text does no such thing, and when the court decisions that are accepted as having settled the matter do not reconcile the power with the Constitution, but instead wave their hands over the smoke-and-mirrors phrase "inherent power of sovereignty." Does the man not understand the history of the Federal immigration authority?

Worse, do the Justices even understand that history? When Scalia says, "we expanded" naturalization to include immigration, who is the "we," to which he refers, and how does he think that expansion was engineered and justified? Maybe he is thinking of a different set of cases than I am, and if so, I hope the final decision cites them, so that we can ALL find out, once and for all, how the legal magic trick was done -- at least, according to Justice Scalia.

[MikeP]

You are correct that the federal power over immigration is invented out of whole cloth. See, for example, the 1889 Chae Chan Ping decision:

The power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States as a part of those sovereign powers delegated by the constitution, the right to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of any one. The powers of government are delegated in trust to the United States, and are incapable of transfer to any other parties. They cannot be abandoned or surrendered. Nor can their exercise be hampered, when needed for the public good, by any considerations of private interest.

Does it cross the justices minds that they are deriving their decisions from such facile precedent? I doubt it. Precedent is precedent, and no one on either side of this case is challenging it.

[R C Dean]

belonging to the government of the United States as a part of those sovereign powers delegated by the constitution,

Yet one searches for this delegation in vain in the list of enumerated powers.

[JangoJiii]

Those guys really just dont get it man, I mean like seriously?

http://www.Privacy-Tools.tk

[Ed Reid]

Stipulate that the federal government has the power to control immigration.

There is a federal immigration law.

That federal immigration law is being violated.

The federal government is not enforcing the existing law.

The failure of the federal government to enforce existing immigration law is causing financial harm to the Arizona state government and its citizens.

The State of Arizona has acted to enforce the federal law, in the enforcement void created by the federal government, to protect its interests.

Arizona is being victimized by the federal government and is seeking redress at the Supreme Court.

Viva Arizona.

[Ron]

I always found it odd that the Fed's are saying that the States Can't enforce federal law. They do all the time. When a bank is robed it's the local police who show up first, eventually the FBI shows up, the same is true of kidnapping and counterfiting. Based on what the fed is saying now, should the police never show up at any of these crimes and always wait for the FBI to arrive no matter how far away they are. If the Arizona law fails should all police no longer cooperate with the Federal law. And what about the other side of the coin where so called sanctuary cities refuse to tell the Fed's about the illegals that they are hiding. It's clear it not just hypocrisy but about of who gets control of what and the federal government wants more of it and they see Arizona's law as a slipping away of their power.

[jason]

These days the Arizona is in the center but because of some legal changes in the state.