The Supreme Court today hears arguments regarding Arizona’s immigration law. It is a rematch of the ObamaCare arguments, with whiz kid Paul Clement once again facing off against “chokin’ Don” Verrilli. The issue, as I see it, is whether Arizona is authorized to empower local law enforcement to carry out federal immigration law, or whether President Obama gets to say: hey, I am the decider of what laws we’re going to enforce around here.
Here are a couple of passages from the United States’s brief (.pdf):
Section 6, therefore, does not serve any state-specific crime-prevention goal; it instead works in tandem with Section 2 to allow second-guessing of federal enforcement priorities. For the same reasons as Section 2, that effort is preempted: while cooperative law-enforcement efforts are both permissible and welcome, arrests based on state officials’ view of who should be removed are not “cooperat[ion].”
That’s on page 28, and you should read “federal law enforcement priorities” as code for “Obama’s decision not to fully enforce immigration laws.” He is the president, dammit, and he doesn’t want his nullification of Congress’s laws to be nullified. More, at page 26:
Federal law and policy do not adopt such a one-size-fits-all approach to enforcement. The officials who enforce the Nation’s immigration laws require significant discretion in order to balance numerous goals and purposes relevant under the INA, including law enforcement priorities, foreign-relations considerations, and humanitarian concerns. Congress has expressly directed the Secretary to prioritize “the identification and removal of aliens convicted of a crime by the severity of that crime.” DHS Appropriations Act, Tit. II, 123 Stat. 2149. Among criminal aliens, DHS’s highest enforcement priorities are aliens who threaten public safety or national security and members of criminal gangs that smuggle aliens and contraband. DHS also gives priority to removing repeat border crossers, recent entrants, aliens who have previously been removed, and aliens who have disregarded an immigration court’s final order of removal. C.A. Supp. E.R. 109-111. Federal officials exercise countervailing discretion in some instances; in some individual cases, humanitarian considerations may call for deferring removal of an otherwise removable alien.
You should read this passage as code for: Obama does not want to fully enforce federal immigration law, because it might upset Mexico (foreign-relations considerations) or piss off Latino voters (humanitarian concerns).
Now, the argument about “priorities” does not carry much weight when the states are offering their resources to effect more enforcement. For example, if I have four goals and prioritize goal #1, I can’t really complain when someone says: “I’ll help you, but I want to focus more on goals 2-4.”
That is, unless goals 2-4 aren’t really goals of mine, and I am paying lip service to them — or there is some compelling reason (beyond insufficient resources) that I shouldn’t address goals 2-4 before goal 1.
President Obama isn’t the only player in this game. Congress has passed laws and expects them to be enforced. Obama surely has discretion, but that discretion should not extend to non-enforcement. And that is what he seems to seek: the ability not to enforce federal immigration law.
If the Supreme Court sees the issue the way I do, it may be another 5-3 split the way it was last time an Arizona immigration law went to the High Court. (Justice Kagan is recusing herself from this one.) Today’s arguments may send a clear signal. It should be interesting.