Constitutional Opinions

Verrilli’s Latest Losing Hand

When even an Obama appointed justice won't allow herself to be patronized, you know you've had a bad day.

By 4.26.12

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"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:

Anyway, what's wrong about the states enforcing Federal law? There is a Federal law against robbing Federal banks. Can it be made a state crime to rob those banks? I think it is. But does the Attorney General come in and say, you know, we might really only want to go after the professional bank robbers? If it's just an amateur bank robber, you know, we're going to let it go. And the state's interfering with our whole scheme here because it's prosecuting all these bank robbers.

Even the left-leaning Justice Stephen Breyer was unconvinced of the Obama administration's position, wondering aloud how a provision that would require policemen call to check immigration status can be said to conflict with a federal rule that allows policemen to call to check immigration status.

As Verrilli kept going with the same weak argument, Justice Sotomayor let him know the score: "[Y]ou can see it's not selling very well -- why don't you try to come up with something else? Because I, frankly -- as the chief has said to you, it's not that it's forcing you to change your enforcement priorities. You don't have to take the person into custody. So what's left of your argument?"

One almost felt bad for General Verrilli when he tried to respond with an argument about harassment, despite a clear answer to Justice Scalia at the beginning of the questioning that the federal government was not making any arguments based on racial profiling. When he tried to make that case, Sotomayor interjected, "Please move…" It could not have been an accident that Verrilli tried to play the profiling card in response to the Court's only Hispanic Justice, but even she wouldn't hear it.

Questioning moved on to focus on Section 3 of SB 1070, which makes illegal presence in Arizona a state crime (in addition to being a federal crime), and again Verrilli's argument was that the state was imposing on the federal prerogatives regarding registration of aliens. It went no better for him. When Justice Scalia noted that perhaps it is an issue of Arizona helping to enforce federal law because the federal government doesn't have the money to do so itself, Verrilli stretched to suggest that Arizona's jailing more people than the federal government would jail for illegal immigration "poses a very serious risk of raising significant foreign relations problems."

Chief Justice Roberts asked whether the administration's argument was about foreign relations or lack of resources, and Justice Scalia asked, "Well, can't you avoid that particular foreign relations problem by simply deporting these people?" But this time the knife-twisting came from Justice Kennedy: "So you're saying the government has a legitimate interest in not enforcing its laws?"

Verrilli returned to the foreign relations issue, arguing that "Between 60 and 70 percent of the people that we remove every year, we remove to Mexico. And in addition, we have to have the cooperation of the Mexicans." Scalia asked the obvious question: "So we have to enforce our laws in a manner that will please Mexico. Is that what you're saying?" One can only imagine the sinking feeling in Donald Verrilli's stomach.

One of the more interesting arguments arose regarding Section 5 of SB 1070, which imposes penalties on an illegal alien for seeking or performing work in Arizona. The federal argument is that Congress addressed this issue and decided only to impose penalties on those employers who hired illegal aliens, thus implying that it is federal law not to impose penalties on the illegal aliens themselves. Verrilli's time ended before any Justice asked a question on this issue, but based on earlier questions the Court seemed no more sympathetic to this argument than any of the others.

Paul Clement got several minutes of rebuttal time, which he began by saying that "the Government's rather unusual theory that something that's okay when done ad hoc becomes preempted when it's systematic, I think that theory largely refutes itself."

He reiterated that the impact on the federal government of the Arizona law is nothing more than "giving [them] information on which to bring their enforcement priorities to bear."

He also made a point (which he had touched on briefly earlier in the questioning) that is a key political issue in states that have a substantial conservative population but also large cities run by liberals: SB 1070 is designed in part to trump local laws that have the effect of creating "sanctuary cities" that discourage or prevent their law enforcement officials from enquiring about a detained or arrested person's immigration status.

Chief Justice Roberts ended the arguments with "Thank you, Mr. Clement, General Verrilli. Well argued on both sides." Mr. Clement's position was indeed well argued, and seemed at least somewhat persuasive to the two liberal judges most involved in questioning. As for Mr. Verrilli, perhaps he did the best he could with the hand he was dealt.

After all, when you work for an administration that -- in true "Progressive" fashion -- considers the Constitution nothing more than an impediment to its goals, it is not easy to argue in front of Justices who, to a greater or lesser degree, take the Constitution seriously (even if not always consistently).

It is often a losing game to predict the eventual outcome of a Supreme Court case based on questioning, but if the tenor of Wednesday's questions and the quality of Wednesday's answers are any indication, a ruling in favor of Arizona -- at least on the highly disputed Section 2(B) -- by at least a 5-3 margin seems in the cards. (Justice Kagan has recused herself from the case because of her role in the Obama administration's original challenge to the Arizona law. Because a lower court has overturned some parts of Arizona's law, a tie 4-4 vote would functionally be a loss for the state.)

Perhaps more interesting than the impact on SB 1070 itself will be the broadness of the eventual ruling. Given the aggressive questions and comments by Justices Roberts, Kennedy, and Scalia -- and the lack of substantial opposition by the liberals on the bench -- the Supreme Court's conservative wing may use this case as an opportunity to reintroduce Congress, the Obama administration, and the nation to the Tenth Amendment and the important role of states in our republic. Should the majority use this ruling to broaden states' rights and powers, the Obama administration and liberals across the nation may rue the day they ever kicked this particular legal hornets' nest. 

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About the Author
Ross Kaminsky is a self-employed trader and investor and is a senior fellow of the Heartland Institute. He is the host of The Ross Kaminsky Show on Denver's NewsRadio 850 KOA on Saturday mornings from 6 AM to 9 AM. You can reach Ross by e-mail at rossputin(at)rossputin(dot)com.