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Thursday, April 26, 2012

Federalism and the Arizona Law

(Revised, 4/27 am)

The case of Arizona v. US  involves the state's controversial law on illegal immigration. The New York Times reports on this week's oral argument:
Justices across the ideological spectrum appeared inclined on Wednesday to uphold a controversial part of Arizona’s aggressive 2010 immigration law, based on their questions at a Supreme Court argument.

“You can see it’s not selling very well,” Justice Sonia Sotomayor, a member of the court’s liberal wing and its first Hispanic justice, told Solicitor General Donald B. Verrilli Jr., referring to a central part of his argument against the measure.
 Verrilli, whose performance in the health care case was sometimes halting and unfocused, seemed on Wednesday occasionally to frustrate justices who might have seemed likely allies. At one point Justice Sotomayor, addressing Mr. Verrilli by his title, said: “General, I’m terribly confused by your answer. O.K.? And I don’t know that you’re focusing in on what I believe my colleagues are trying to get to.”
Oral argument also touched on issues of federalism. The Constitutional Law Prof Blog reports:
Arguing for the United States, Solicitor General Verrilli had barely finished "may it please the Court," when Chief Justice Roberts posed this query:

CHIEF JUSTICE ROBERTS: Before you get into what the case is about, I'd like to clear up at the outset what it's not about. No part of your argument has to do with racial or ethnic profiling, does it? I saw none of that in your brief.
When Verrilli answered "That's correct," Roberts again repeated his statement:
CHIEF JUSTICE ROBERTS: Okay. So this is not a case about ethnic profiling.
Justice Scalia quickly articulated a states rights perspective. Responding to the federal government's position that "the Constitution vests exclusive authority over immigration matters with the national government," Scalia asked:

JUSTICE SCALIA: All that means, it gives authority over naturalization, which we've expanded to immigration. But all that means is that the Government can set forth the rules concerning who belongs in this country. But if, in fact, somebody who does not belong in this country is in Arizona, Arizona has no power? What does sovereignty mean if it does not include the ability to defend your borders?
Chief Justice Roberts explicitly stated "I don't see the problem with section 2(B)," perhaps explaining his earlier effort to clarify that the case was not about "racial profiling."

The discussions of preemption were often less focused on Congressional intent than on generalized federalism concerns, although at one point Chief Justice Roberts seemed to highlight the only precedent that mattered. Attempting to engage in an analogy, Verrilli argued:

. . . . if you ask one of your law clerks to bring you the most important preemption cases from the last years, and they rolled in the last -- the last hundred volumes of the U.S. Reports and said, well, they are in there. That -- that doesn't make it --
CHIEF JUSTICE ROBERTS: What if they just rolled in Whiting?
CHIEF JUSTICE ROBERTS: That's a pretty good one.
The analogy was never completed.

But if Arizona v. United States mimics Chamber of Commerce v. Whiting, decided last May and upholding the Legal Arizona Workers Act, we can expect a fractured opinion ultimately finding in favor of Arizona.

See blog post on Whiting.