In terms of making its case before the Supreme Court, it’s been a spring to forget for the Obama administration.
The struggles on Wednesday of the administration’s top advocate before the Court, Solicitor General Donald Verrilli, to allay the justices’ skepticism toward the administration’s position on Arizona’s sweeping immigration law was reminiscent of his less-than-stellar time a month ago defending the health care reform act. In both instances, a majority of the Court openly assailed the White House’s case, if not showing outright hostility toward it.
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Yes, that’s to be expected from a high court dominated by conservative jurists appointed by Republican presidents. And the fact that this dynamic appears to be on the rise suggests that a sort of legal cold war between the Supreme Court and the White House has broken out in full.
Regardless, it was clear from the get-go on Wednesday, as it was a month ago during the arguments over the health care law, that even so-called middle-ground conservative justices such as Anthony Kennedy, as well as Chief Justice John Roberts and Samuel Alito, have shown little inclination to side with the administration.
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While Justice Antonin Scalia played his traditional outsized role as the blustery lightning rod, ridiculing the government’s case at almost every turn, it was Roberts who, with precision, seemed intent at undermining it at every opportunity. Before Verrilli began his presentation, Roberts noted that the government had failed to assert that Arizona’s immigration law should be overturned because it invites racial and ethnic profiling. (This was true: The U.S. made the decision to argue that the law should be struck down because it interferes with the enforcement of immigration laws, a traditional federal function, not because it could lead to race-based targeting.)
That would be instrumental later, as Verrilli attempted to find traction with the justices by contending that the Arizona law could indeed lead to harassment of individuals suspected of being in the country illegally. “What does this have to do with federal immigration law?” said Scalia, pouncing. “I mean, it may have to do with racial harassment, but I thought you weren’t relying on that.”
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Verrilli wasn’t trying to make a straight-up harassment argument, but instead was making a case for why federal law should supersede Arizona’s law. But Roberts—perhaps knowing Verrilli was going to go there—had already induced him to concede part of that case at the outset.
The chief justice also attacked the government’s main justification for overturning Arizona’s law—that mandatory checks by Arizona law enforcement officers would interfere with the federal government’s prosecutorial discretion in immigration cases. He also found fault with Verrilli’s argument that it might be acceptable for individual Arizona officers to conduct background checks in certain cases, but a law mandating such checks is unconstitutional. Roberts noted that the law provides for an immigration status check only if the suspect is stopped for reasons relating to another possible crime.
Why, Roberts wondered, wouldn’t the government want to know about the legal status of a possible alien in that situation? “It seems to me that the federal government just doesn’t want to know who is here illegally or not,” he said.
Both Roberts and Kennedy—key votes if the Obama administration wants a clear victory and the law overturned—honed in on the idea of resources, wondering if the federal government, had, as Arizona has claimed, determined to not make immigration enforcement a priority, whether states could step into the breach. And Scalia pushed Verrilli to acknowledge that the Justice Department’s budget isn’t as large as it needs to be to enforce immigration law.
All of it had the effect of making the government’s case seem weaker than it perhaps is on paper. Verrilli’s strongest moment may have come in response to a helpful question from Justice Sonia Sotomayor, who asked how Arizona officers would be able to determine whether a person stopped by police is in the country legally. “There isn’t a citizen database,” Verrilli said late in his argument. “There is no reliable way in the database to verify you are citizen unless you are in the passport database.”
Sotomayor suggested that could lead to extended detention of lawful U.S. residents. “So if you run out of your house without your driver’s license or identification and you walk into a park that’s closed and you’re arrested,” she said, “you could sit there forever.”
It’s entirely possible the justices could, as they implied on Wednesday, uphold the section of Arizona’s law that allows for the mandatory immigration check while striking down sections that makes it a state crime to be without proof of legal registration with the federal government and for illegal immigrants to apply for jobs in the states.
But that first provision has drawn the most ink in the news media and the most criticism from progressive groups—and should the case end up going that way, it will be hard for the result to appear as anything but a loss for the Obama administration at the hands of this Court.