Politico (by Josh Gerstein and Carrie Budoff Brown): The Supreme Court appears likely to side with Arizona over a key part of its controversial anti-illegal immigration law, rejecting the Obama administration’s claim that the state overreached its authority by requiring local police to check the immigration status of people suspected of being in the country illegally.
However, during oral arguments Wednesday, the court’s liberal justices and some of its conservatives expressed concern that holding people who have been arrested until a check of their immigration status is complete could violate their rights by prolonging their detention.
The justices weighed the constitutionality of the 2010 law that was considered at the time to be the toughest measure any state had enacted to drive out illegal immigrants. It set off a nationwide debate on the ability of states to enforce immigration laws and the political impact that such efforts would have on the voting patterns of the growing number of Latinos.
The court’s decision — expected in June, in the midst of the presidential campaign — is likely to affect not only Arizona but also a handful of other states in which elected officials said they needed to act to reduce illegal immigration because the federal government did not.
Justice Sonia Sotomayor, the only Hispanic on the high court, took a very active role in the arguments, jumping in with the first question for Arizona’s lawyer, Paul Clement, and openly criticizing Solicitor General Donald Verrilli Jr. when she thought his arguments went off course.
“What I see as critical is the issue of how long [someone is detained] and when is the officer going to exercise discretion to release the person,” Sotomayor said.
Justices Anthony Kennedy and Samuel Alito also appeared troubled by the law’s provision instructing local law enforcement to detain someone until their immigration status is confirmed.
“If it takes two weeks to make that determination, could an alien be held for that period of time?” Kennedy asked.
Clement said a person could be held for a “reasonable” time. He said an immigration check takes an average of 11 minutes, though Verrilli said later he believes the average is about an hour more than that.
But Clement also suggested that the issue of prolonged detention isn’t before the court, saying it “is neither an immigration law issue nor something that can be the basis for striking down the statute on its face.”
During the argument, Justice Antonin Scalia was an extremely vocal advocate for states’ rights to conduct immigration enforcement.
“What does sovereignty mean if it does not include the authority to defend your border?” Scalia asked.
The Obama administration filed suit against Arizona shortly before the law was to take effect and won a court order blocking enforcement of key parts of the measure, including a provision requiring officers, while enforcing other laws, to question a person’s legal status if officers suspect they are in the country illegally.
Immigrant rights advocates and civil liberties groups have attacked the Arizona law, known as S.B. 1070, as certain to lead to profiling of Hispanics, including U.S. citizens of Latino descent. Lower courts blocked key parts of the law not because it encouraged racial profiling, but because of the Justice Department’s argument that it interfered with the federal government’s authority to set immigration policy.
Justice Elena Kagan, the former U.S. solicitor general, recused herself from the case. This means a 4-4 split on any issue would leave in place the appeals court’s ruling that stopped key parts of the Arizona law from taking effect. But it would not set a national precedent. There are several other challenges to the law still pending.
Arizona Gov. Jan Brewer, a Republican who signed the law, said she feels confident the court will side with the state.
“I thought the hearing was very direct, and I was very appreciative of the extra time the justices gave the issue today because they too understand the importance of it not only in Arizona but in America,” Brewer said, as protesters booed and shouted “Shame on you.” “So I’m gratified that we had good debate on it, good presentation and I feel very, very confident that we will win this.”
During the arguments, Verrilli said the stated purpose of Arizona’s law, “attrition through enforcement,” puts it at odds with the federal government, which has to balance enforcement, humanitarian concerns and foreign policy issues.
States “cannot do what Arizona is seeking to do here, which is to elevate one consideration above all others,” Verilli argued. “These decisions have to be made at the national level.”
Yet, several of the court’s conservatives picked up on Arizona’s argument that the state’s policy isn’t really at odds with the laws Congress has passed, but with the way the Obama administration is choosing to enforce them.
Scalia twice asked Verrilli to cite a case in which the court struck down a state law for interfering with executive priorities, rather than a congressional statute. He could not do so, but said Congress specifically ceded broad powers on immigration to executive officials.
Roberts seemed baffled by the administration’s arguments that Arizona can’t make police there check immigration status for every person arrested, even though a federal law specifically orders the Department of Homeland Security to perform such checks when a state or local government requests them.
“It seems an odd argument to say the federal government has to answer states questions, but a state [can’t] ask,” Roberts said.
“We’re not saying a state can’t ask in any individual case,” Verrilli replied. He said the systematic “locked-in” order to check deprives individual officers of discretion to cooperate with federal enforcement priorities.
“That’s what I can’t understand,” Justice Samuel Alito said.
Despite her other concerns about the Arizona law, Sotomayor quickly chimed in to say she too was baffled.
“I’m terribly confused by your answer. I don’t think you’re focusing in on what my colleagues are trying to ask,” she said.
Verrilli then said the mandatory-check provision could lead to “harassment” of people because of their background.
“While we’re not alleging racial profiling, you have a population in Arizona of 2 million Latinos, only 400,000 of whom are there unlawfully,” Verrilli said.
“Sounds like racial profiling to me,” Kennedy quickly interjected, taking Verrilli to task for making an argument he’d sworn off earlier.
“Are you objecting to harassing the people who have no business being here?” Scalia asked skeptically.
When Verrilli later tried to explain why systematic checking was objectionable, but “ad hoc” checks were not, Sotomayor again stepped in.
“You see it’s not selling very well. Why don’t you try to come up with something else?” she said.
As he neared the end of his argument, and facing pushback from several of the justices, Verrilli cast the law in the darkest terms.
“What they’re trying to do, effectively, is engage in mass incarceration,” he warned.
Beyond the constitutional and policy impact, the controversial case has the potential to shape the presidential contest. President Barack Obama and his Republican challenger, Mitt Romney, are courting the Latino vote, which is expected to play a major role in the outcome in at least three key swing states — New Mexico, Colorado and Nevada.
The case holds peril for both candidates.
During the Republican primary, Romney endorsed the Arizona law as a “model” for the country, but he has since walked back that statement as he moves into general-election mode.
His campaign said last week that the Romney endorsed only an element of the law requiring employers to verify an employee’s immigration status, rather than the controversial provision compelling local law enforcement to question a person’s legal status.
For Obama, the wave of lawsuits against state governments, including Alabama, South Carolina and Utah, hold some political risk because opinion polls show the measures to be popular with voters.
Justice Department officials insist that political considerations played no part in the decision to sue Arizona or the other states. However, many analysts say there’s more upside than downside politically in challenging the state-level immigration laws.
As the justices heard the arguments Wednesday, supporters and opponents of the law competed outside the court with side by side rallies.
The Rivoli Revue, a singing duo with a Youtube hit called “Press 1 for English,” entertained the crowd with a number of songs, including one with the lyrics: “Let our borders be secured and if they don’t do it, we the people can.” Supporters held signs saying “thank you Arizona” and “Jesus loves SB 1070.”
Opponents of the law sang repeatedly chanted “Hey, hey, ho, ho, 1070 has got to go” and “the people united will never be divided.” Signs saying “no to racial profiling” and “people of faith for immigrant justice” dotted the crowd as they waited for arguments to end.
After the arguments, former Arizona Senate President Russell Pearce, who authored the law, said he believed the court would uphold it.
“I thought even the liberals thought that their arguments were weak and kind of rolled their eyes and sat back in their chair,” Pearce said. “Actually, if I was the Obama administration I’d be a little embarrassed. I thought their arguments were frivolous.”
Rep. Luis Gutierrez of Illinois, meanwhile, said it’s his “hope” that the court will decide against the law after hearing the arguments, but noted that Congress must look into legislative action for comprehensive immigration reform.
However, during oral arguments Wednesday, the court’s liberal justices and some of its conservatives expressed concern that holding people who have been arrested until a check of their immigration status is complete could violate their rights by prolonging their detention.
The justices weighed the constitutionality of the 2010 law that was considered at the time to be the toughest measure any state had enacted to drive out illegal immigrants. It set off a nationwide debate on the ability of states to enforce immigration laws and the political impact that such efforts would have on the voting patterns of the growing number of Latinos.
The court’s decision — expected in June, in the midst of the presidential campaign — is likely to affect not only Arizona but also a handful of other states in which elected officials said they needed to act to reduce illegal immigration because the federal government did not.
Justice Sonia Sotomayor, the only Hispanic on the high court, took a very active role in the arguments, jumping in with the first question for Arizona’s lawyer, Paul Clement, and openly criticizing Solicitor General Donald Verrilli Jr. when she thought his arguments went off course.
“What I see as critical is the issue of how long [someone is detained] and when is the officer going to exercise discretion to release the person,” Sotomayor said.
Justices Anthony Kennedy and Samuel Alito also appeared troubled by the law’s provision instructing local law enforcement to detain someone until their immigration status is confirmed.
“If it takes two weeks to make that determination, could an alien be held for that period of time?” Kennedy asked.
Clement said a person could be held for a “reasonable” time. He said an immigration check takes an average of 11 minutes, though Verrilli said later he believes the average is about an hour more than that.
But Clement also suggested that the issue of prolonged detention isn’t before the court, saying it “is neither an immigration law issue nor something that can be the basis for striking down the statute on its face.”
During the argument, Justice Antonin Scalia was an extremely vocal advocate for states’ rights to conduct immigration enforcement.
“What does sovereignty mean if it does not include the authority to defend your border?” Scalia asked.
The Obama administration filed suit against Arizona shortly before the law was to take effect and won a court order blocking enforcement of key parts of the measure, including a provision requiring officers, while enforcing other laws, to question a person’s legal status if officers suspect they are in the country illegally.
Immigrant rights advocates and civil liberties groups have attacked the Arizona law, known as S.B. 1070, as certain to lead to profiling of Hispanics, including U.S. citizens of Latino descent. Lower courts blocked key parts of the law not because it encouraged racial profiling, but because of the Justice Department’s argument that it interfered with the federal government’s authority to set immigration policy.
Justice Elena Kagan, the former U.S. solicitor general, recused herself from the case. This means a 4-4 split on any issue would leave in place the appeals court’s ruling that stopped key parts of the Arizona law from taking effect. But it would not set a national precedent. There are several other challenges to the law still pending.
Arizona Gov. Jan Brewer, a Republican who signed the law, said she feels confident the court will side with the state.
“I thought the hearing was very direct, and I was very appreciative of the extra time the justices gave the issue today because they too understand the importance of it not only in Arizona but in America,” Brewer said, as protesters booed and shouted “Shame on you.” “So I’m gratified that we had good debate on it, good presentation and I feel very, very confident that we will win this.”
During the arguments, Verrilli said the stated purpose of Arizona’s law, “attrition through enforcement,” puts it at odds with the federal government, which has to balance enforcement, humanitarian concerns and foreign policy issues.
States “cannot do what Arizona is seeking to do here, which is to elevate one consideration above all others,” Verilli argued. “These decisions have to be made at the national level.”
Yet, several of the court’s conservatives picked up on Arizona’s argument that the state’s policy isn’t really at odds with the laws Congress has passed, but with the way the Obama administration is choosing to enforce them.
Scalia twice asked Verrilli to cite a case in which the court struck down a state law for interfering with executive priorities, rather than a congressional statute. He could not do so, but said Congress specifically ceded broad powers on immigration to executive officials.
Roberts seemed baffled by the administration’s arguments that Arizona can’t make police there check immigration status for every person arrested, even though a federal law specifically orders the Department of Homeland Security to perform such checks when a state or local government requests them.
“It seems an odd argument to say the federal government has to answer states questions, but a state [can’t] ask,” Roberts said.
“We’re not saying a state can’t ask in any individual case,” Verrilli replied. He said the systematic “locked-in” order to check deprives individual officers of discretion to cooperate with federal enforcement priorities.
“That’s what I can’t understand,” Justice Samuel Alito said.
Despite her other concerns about the Arizona law, Sotomayor quickly chimed in to say she too was baffled.
“I’m terribly confused by your answer. I don’t think you’re focusing in on what my colleagues are trying to ask,” she said.
Verrilli then said the mandatory-check provision could lead to “harassment” of people because of their background.
“While we’re not alleging racial profiling, you have a population in Arizona of 2 million Latinos, only 400,000 of whom are there unlawfully,” Verrilli said.
“Sounds like racial profiling to me,” Kennedy quickly interjected, taking Verrilli to task for making an argument he’d sworn off earlier.
“Are you objecting to harassing the people who have no business being here?” Scalia asked skeptically.
When Verrilli later tried to explain why systematic checking was objectionable, but “ad hoc” checks were not, Sotomayor again stepped in.
“You see it’s not selling very well. Why don’t you try to come up with something else?” she said.
As he neared the end of his argument, and facing pushback from several of the justices, Verrilli cast the law in the darkest terms.
“What they’re trying to do, effectively, is engage in mass incarceration,” he warned.
Beyond the constitutional and policy impact, the controversial case has the potential to shape the presidential contest. President Barack Obama and his Republican challenger, Mitt Romney, are courting the Latino vote, which is expected to play a major role in the outcome in at least three key swing states — New Mexico, Colorado and Nevada.
The case holds peril for both candidates.
During the Republican primary, Romney endorsed the Arizona law as a “model” for the country, but he has since walked back that statement as he moves into general-election mode.
His campaign said last week that the Romney endorsed only an element of the law requiring employers to verify an employee’s immigration status, rather than the controversial provision compelling local law enforcement to question a person’s legal status.
For Obama, the wave of lawsuits against state governments, including Alabama, South Carolina and Utah, hold some political risk because opinion polls show the measures to be popular with voters.
Justice Department officials insist that political considerations played no part in the decision to sue Arizona or the other states. However, many analysts say there’s more upside than downside politically in challenging the state-level immigration laws.
As the justices heard the arguments Wednesday, supporters and opponents of the law competed outside the court with side by side rallies.
The Rivoli Revue, a singing duo with a Youtube hit called “Press 1 for English,” entertained the crowd with a number of songs, including one with the lyrics: “Let our borders be secured and if they don’t do it, we the people can.” Supporters held signs saying “thank you Arizona” and “Jesus loves SB 1070.”
Opponents of the law sang repeatedly chanted “Hey, hey, ho, ho, 1070 has got to go” and “the people united will never be divided.” Signs saying “no to racial profiling” and “people of faith for immigrant justice” dotted the crowd as they waited for arguments to end.
After the arguments, former Arizona Senate President Russell Pearce, who authored the law, said he believed the court would uphold it.
“I thought even the liberals thought that their arguments were weak and kind of rolled their eyes and sat back in their chair,” Pearce said. “Actually, if I was the Obama administration I’d be a little embarrassed. I thought their arguments were frivolous.”
Rep. Luis Gutierrez of Illinois, meanwhile, said it’s his “hope” that the court will decide against the law after hearing the arguments, but noted that Congress must look into legislative action for comprehensive immigration reform.
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