President Barack Obama faces the specter of twin setbacks at the U.S. Supreme Court in the middle of his re-election campaign with justices questioning his assertion of federal power on both health care and immigration.
U.S. Solicitor General Donald Verrilli, the president’s top courtroom lawyer, met resistance across ideological lines yesterday as he called on the court to strike down Arizona’s crackdown on illegal immigrants. Even Justice Sonia Sotomayor, the court’s only Hispanic and an Obama appointee, told Verrilli his argument is “not selling very well.”
Coupled with last month’s argument over Obama’s health-care overhaul, the session raised the possibility of a one-two punch hitting the president in June, when the court might invalidate his signature domestic achievement and uphold the core of the Arizona law his administration went to court to stop.
June may be the “cruelest month” for Obama, said Barbara Perry, a presidential and Supreme Court scholar at the University of Virginia’s Miller Center. “His hope has to be that if both of these huge cases go against him, Americans will be at the beach and won’t be paying attention, but I don’t think he will be that lucky.”
Both cases pit the administration against Republican- controlled states over the federal-state balance of power, which will be an issue in the election. Mitt Romney, who along with Obama is vying for Hispanic votes, has taken a tough stance on illegal immigration in his bid for the Republican presidential nomination, even as a report this week said the wave of undocumented aliens from Mexico has ended and many have returned to their native country.
White House spokesman Eric Schultz declined to comment.
The court’s immigration decision may also have a ripple effect on laws enacted during the past two years in Alabama, South Carolina, Georgia, Utah and Indiana.
The justices yesterday voiced skepticism about parts of the Arizona law, including penalties on illegal immigrants who seek jobs and a provision that would make it a state criminal offense for a foreigner to be in Arizona without correct documentation.
“They were very concerned about picking and choosing among the sections of the statute,” said Garrett Epps, a law professor at the University of Baltimore who attended the argument.
Still, the justices made clear they see states as having a role to play in addressing the presence of what the government has estimated are 11.5 million unauthorized aliens in the U.S.
Defending the Borders
“What does sovereignty mean if it does not include the ability to defend your borders?” Justice Antonin Scalia said during the 80-minute session, which ran 20 minutes beyond its scheduled time.
The central legal question is whether the U.S. Immigration and Nationality Act, which says states may cooperate in enforcing federal law, preempts the 2010 Arizona statute.
The administration sued to challenge four provisions in the Arizona law, known as S.B. 1070. Probably the measure’s most contentious part says police officers must check immigration status when they arrest or stop someone and have “reasonable suspicion” that the person is in the U.S. illegally. The disputed provisions haven’t taken effect.
Paul Clement, the lawyer representing Arizona, sought to minimize the provision’s impact. Answering questions from Sotomayor, Clement -- who argued against Verrilli in the health- care case as well -- said if federal officials didn’t want to take custody of an illegal immigrant, Arizona police officers would have to release the person unless they had a basis under state law for making an arrest.
Setting the Tone
That statement set the tone for much of the rest of the session, undercutting Verrilli’s assertion that the law encroaches on the exclusive federal right to set immigration policy.
Chief Justice John Roberts repeatedly said federal officials would make the final call about whether a person should be deported or prosecuted for violating federal law.
“All it does is notify the federal government, ‘Here is someone who is here illegally,’” Roberts said. “The discretion to prosecute for federal immigration offenses rests entirely with the attorney general.”
Said Roberts, “It seems to me that the federal government just doesn’t want to know who is here illegally or not.”
Two Democratic appointees -- Sotomayor and Justice Stephen Breyer -- joined in that line of questioning. Breyer raised the possibility of upholding the provision with the understanding that it wouldn’t cause people to be detained “significantly longer” than they would have been previously.
‘Filled With Optimism’
“If that were the situation, and we said it had to be the situation, then what in the federal statute would that conflict with?” Breyer asked Verrilli.
Arizona’s Republican governor, Jan Brewer, said she is “filled with optimism” after yesterday’s arguments. “Many people never gave us a chance to get this far,” she said in a statement.
The Obama administration says the measure would undermine its efforts to give highest priority to illegal aliens who threaten public safety and those who belong to gangs that smuggle other aliens, drugs and weapons.
“These decisions have to be made at the national level,” Verrilli argued.
Clement said many Arizona police officers already are routinely checking immigration status when they stop a person or make an arrest. The new law would simply extend those “ad hoc” checks into a statewide policy, he said.
“The government’s rather unusual theory that something that’s OK when done ad hoc becomes preempted when it’s systematic, I think that theory largely refutes itself,” Clement argued.
One issue not directly before the justices is the contention that the law will lead to racial profiling by police officers. That claim is part of a separate lawsuit being waged by civil rights advocates against the Arizona measure.
In addition to the status-check provision, Arizona’s law would authorize officers to arrest anyone they have “probable cause” to believe is eligible to be deported.
The law also would bar aliens without proper papers from seeking or performing work. Roberts suggested he is skeptical about that provision, which he said is in tension with the federal focus on punishing employers that hire illegal aliens.
The Arizona employment provision “does seem to expand beyond the federal government’s determination about the types of sanctions that should govern the employment relationship,” he said.
Justice Elena Kagan didn’t take part in yesterday’s case. She played a role in the litigation as Obama’s top Supreme Court lawyer before her 2010 appointment to the court.
Her disqualification creates the possibility the court might divide 4-4 on some aspects of the law. That would leave intact a lower court ruling blocking those provisions, without setting a nationwide precedent.
Arizona says its 370-mile border with Mexico is the crossing point for half the U.S.’s illegal immigrants, giving it the right to tackle a problem the national government has failed to address.
The state had 360,000 unauthorized immigrants in 2011, according to the U.S. Department of Homeland Security. During the last four decades, 12 million immigrants came to the U.S. from Mexico, more than half illegally, according to a report released April 23 by the Pew Hispanic Center, a nonpartisan research group in Washington. Net Mexican migration to the U.S. has now stopped and may have reversed, the report said.
The case is Arizona v. United States, 11-182.
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