When even an Obama appointed justice won’t allow herself to be patronized, you know you’ve had a bad day.
“It seems to me that the Federal Government just doesn’t want to know who is here illegally or not.” — Chief Justice John Roberts
Like a poker player who keeps getting dealt nothing better than a pair of threes, Solicitor General Donald Verrilli has had a bad month. His attempt to defend the indefensible “individual mandate” provision of Obamacare has left even the most confident liberals worried that the Supreme Court will overturn at least that part of the law, and perhaps all of it.
And on Wednesday, Verrilli was tasked by the Obama administration to play an only slightly better hand as the Supreme Court heard oral arguments (transcript here) in the federal government’s challenge to four provisions of Arizona’s controversial immigration law, SB 1070. (The four provisions at issue are Sections 2(B), 3, 5(C), and 6.)
The lead attorney for Arizona, former Solicitor General Paul Clement, spoke first, primarily answering questions about whether the law, in particular its Section 2(B) which requires law enforcement officers to check the immigration status of people they’ve stopped for other reasons if a “reasonable suspicion exists that the person…is unlawfully present in the United States,” would cause citizens and resident aliens to be detained for longer than they otherwise would be.
Clement said the answer would generally be no, and in all cases would be subject to Fourth Amendment limits on reasonable detention.
Clement was also asked by several Justices about federal preemption, in other words whether the Arizona law unconstitutionally interfered with federal responsibility in the area of immigration, though even the liberal Hispanic Justice Sonia Sotomayor did not seem convinced that was the case.
The day got no better for General Verrilli when he said that it is the federal government’s position that Arizona does not have the power to remove illegal aliens from within its borders because “the Constitution vests exclusive authority over immigration matters with the national government.”
Justice Antonin Scalia pounced: “But all that means is that 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?”
Scalia noted further that “The Constitution recognizes that there is such a thing as State borders and the States can police their borders, even to the point of inspecting incoming shipments to exclude diseased material.”
Verrilli complained that Arizona is “pursuing a policy that maximizes the apprehension of unlawfully present aliens so they can be jailed as criminals in Arizona unless the Federal Government agrees to direct its enforcement resources to remove [them].”
Chief Justice John Roberts then cut to the heart of the matter: “Well, if that state does — well, that’s a question of enforcement priorities.”
Verrilli turned his argument toward the mandatory nature of SB 1070, namely that law enforcement officials must check the immigration status of someone detained for another reason when there is reasonable suspicion that the person is in the country illegally.
Justice Alito asked if it would be a violation of federal law if, as is permissible under current law, every Arizona law enforcement official voluntarily checked on the immigration status of every person that they would mandatorily have to verify under SB 1070. Verrilli admitted “No, it wouldn’t be.”
Further, Chief Justice Roberts noted that federal immigration authorities are not required to take any action if they choose not to, even if the person is illegally present, and suggested that the law therefore does not overstep federal authority. One can imagine a wry smile crossing Arizona Governor Jan Brewer’s face when Roberts twisted the knife: “It seems to me that the Federal Government just doesn’t want to know who is here illegally or not.”
Verrilli’s response was shorthand for the federal government wanting to be able to set the state’s priorities, even if that meant not enforcing federal law despite damage to the state. Scalia was, as usual, ready with an incisive rebuttal:
A man of faith in a godless age is hitting Americans where it hurts.
Mr. and Mrs. American Spectator Reader, let P.J. O’Rourke talk sense to your kids.
In Britain, defending your property can get you life.
The debacle of this president’s administration is both a cause and a symptom of the decline of American values. Unless Congress impeaches him, that decline will go on unchecked. An eminent jurist surveys the damage and assesses the chances for the recovery of our culture.
It won’t take long for conservatives to scratch this presidential wannabe off their 2008 scorecard.
The American Christmas, like the songs that celebrate it, makes room for everybody under the rainbow. Is that why so many people seem to be hostile to it?
Was the President done in by the economy, or by the politics of the economy?
H/T to National Review Online