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.
“The state has no power to close its borders to people who have no right to be there?” Justice Antonin Scalia asked.
Arizona’s lawyer, Paul Clement, said that one of the provisions of the Arizona law allows state officials to prosecute illegal immigrants for failing to carry a federal immigration document. Mr. Clement said the state could use that power under state law to take action against illegal immigrants.
Justice Anthony Kennedy later repeated the question: “Can we say, or do you take the position, that a state must accept within its borders a person who is illegally present under federal law?”
Again, Clement said the state had power to act.
Later, Verrilli was asked a version of the same question, whether Arizona had the power to exclude illegal immigrants from its borders. He said, no.
“The Constitution vests exclusive authority over immigration matters with the national government,” Verrilli told the justices. He said Arizona was seeking to craft its own immigration policy rather than cooperating with federal policy set in Washington.
“Arizona has no power?” Scalia asked. “What does sovereignty mean if it does not include the ability to defend your borders?”
Verrilli said the Framers vested immigration authority in the national government “because they understood that the way this nation treats citizens of other countries is a vital aspect of our foreign relations.”
Scalia said it is still up to the national government to decide who can and can’t enter the US. “Arizona is not trying to kick out anybody that the federal government has not already said does not belong here,” he said.
Scalia said the federal government was seeking to preempt Arizona’s law based on enforcement priorities rather than underlying federal statutes.
“Suppose that the federal government changed its priorities tomorrow, and it said the new policy is maximum enforcement,” Justice Samuel Alito asked. “Would the Arizona law then be un-preempted?”
Verrilli said it would still be a problem. “These decisions have to be made at the national level because … it’s the whole country and not an individual state that pays the price.”
At issue in the case are four provisions of a 2010 Arizona law, designed to encourage illegal immigrants to either go home, relocate to a more immigrant-friendly state, or begin fully complying with US and Arizona laws.
A central provision of the law encourages state and local law enforcement officials to check immigration status during any lawful stop when police have reason to suspect the individual is in the US without legal authorization.
The law also makes it a state crime for an undocumented immigrant to work in Arizona. It requires all noncitizens to carry at all times a federal registration card and makes it a violation of Arizona law to fail to produce the document on demand.
The law also authorizes Arizona law enforcement officials to arrest an immigrant without a warrant when they have probable cause to believe the immigrant committed a deportable offense.
Critics claim the measure will lead to illegal racial profiling. Supporters say it is necessary to compensate for lax and ineffective federal enforcement of immigration laws and border controls.
The Obama administration objected to the law and filed a lawsuit seeking a temporary injunction.
A federal judge agreed with the Obama administration, blocking the four provisions. A panel of the Ninth US Circuit Court of Appeals affirmed.
The case is being heard by eight justices, following the recusal of Justice Elena Kagan, who worked on the Arizona case as solicitor general in the Obama administration prior to joining the high court.
A decision in the case is expected by late June.