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.
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