Arizona immigration law: Another setback for Obama at Supreme Court?
Tough questioning by the justices suggest that at least some of the provisions of the Arizona law may be upheld, rejecting the Obama administration's expansive view of federal power.
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Just as he did last month in the health care reform case, Solicitor General Donald Verrilli on Wednesday faced a barrage of skeptical questions and comments from the justices.
The aggressive questioning suggests there may be five votes in support of at least some of the four challenged provisions of the Arizona law.
At one point, Justice Sonia Sotomayor advised the solicitor general, who represents the Obama administration at the high court, that his argument was “not selling very well.” She added: “Why don’t you try to come up with something else?”
One of the provisions of the Arizona law involves checking the immigration status of someone already detained by police.
Federal law requires the government to respond to requests from state and local police concerning a suspect’s immigration status. But Mr. Verrilli said that requiring the same action in the context of the Arizona provision amounted to an attempt by the state to enforce federal law.
“Under the Constitution, it’s the president and the executive branch that are responsible for the enforcement of federal law,” he said.
“It’s not an effort to enforce federal law,” Chief Justice John Roberts replied. “It is an effort to let you know about violations of federal law. Whether or not to enforce them is still entirely up to you.”
Later the chief justice commented: “It seems to me that the federal government just doesn’t want to know who is here illegally or not.”
The case, Arizona v. United States (11-182), points up a fundamental disagreement between the Obama administration and Arizona over the balance of power between the states and the national government.
More specifically, it is a clash between the administration’s assertion of a nationwide policy requiring kinder, gentler treatment of most of the estimated 11.5 million illegal immigrants in the US, against an attempt by a state government to crack down on illegal immigrants and encourage them to self-deport.
The case involves federal preemption, a legal doctrine that recognizes federal law as the supreme law of the land. When a federal law and a state law clash, generally the federal law trumps the state provision.
In the Arizona case, the Obama administration argues that by passing statutes designed to encourage illegal immigrants to leave the state, Arizona is establishing its own immigration-enforcement mechanism. Since immigration and border control are exclusive areas for the federal government, such usurpation is preempted.
Arizona argues that it is seeking to enforce the letter and spirit of immigration laws enacted by Congress – some of which the administration has chosen not to enforce or only selectively enforce. Rather than seeking to enforce federal laws, Arizona passed a state law that mirrors federal requirements.
Arizona’s immigration crackdown is an explosive subject in a presidential election year, given the rising political clout of Latino voters. While many conservative and independent voters favor tough immigration enforcement, polls show Latino voters overwhelmingly oppose such efforts.
Polls also show President Obama with a substantial lead among likely Latino voters against the presumptive Republican nominee Mitt Romney.
Despite the political implications, the issue before the high court is a question of law: Is the Arizona statute preempted or not?
The case also raised questioned about whether states have inherent power to police their borders and what recourse a state government would have against illegal immigrants if the federal government was unwilling or unable to take effective enforcement action against them.