Patterico's Pontifications


Supreme Court Hears Arizona Immigration Law Case

Filed under: General — Patterico @ 7:39 am

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.

57 Responses to “Supreme Court Hears Arizona Immigration Law Case”

  1. Obama surely has discretion, but that discretion should not extend to non-enforcement.

    This isn’t even about non-enforcement. This is about open prevention of enforcement.

    IGotBupkis, Legally Defined Cyberbully in All 57 States (8e2a3d)

  2. P.S. here’s to another humiliation of the Great Big 0.

    IGotBupkis, Legally Defined Cyberbully in All 57 States (8e2a3d)

  3. So does this mean that state and local law enforcement is precluded from enforcing other federal laws too? Like drug laws? Or gun laws?

    Rorschach (c5574d)

  4. So where can I get a blow by blow of Clement’s smackdown?

    Rorschach (c5574d)

  5. over at scotus blog
    One commentator suggest that all four provisions of 1070 are likely to be struck down. (or at least 4 votes to uphold the 9th with kagan having recused)
    Lyle Denniston implies that the Court may make a more balancing/reasonableness test –

    joe (2d12c3)

  6. I have seen this presented two ways; the first is a state government vs federal government thing. In other words: a pissing match over jurisdiction. The federal government is essentially stating that they are responsible for this sort of crime and aren’t interested in help from the states in prosecuting it- regardless of whether or not the state believes they are doing a good job.

    The other way I have seen this presented is as some sort of attack on immigration itself. This argument basically says that the state is being racist by going after Mexican immigrants and the Feds are there to provide temperance for that.

    How does one defend against these latter accusations?

    Book (20a430)

  7. This hearing today, as with the one on Obamacare, is an indictment of the media that cannot cover anything without its bias.

    It is like the parable of the Emperor’s New Clothes. No one in the media seems to bring up the obvious. Instead they are admiring Obama’s skinny but naked body.

    AZ Bob (7d2a2c)

  8. The way I see it, all power devolves from the individual, the individual gives some power to the states, which in turn give some of their power to the Federal Government. so Ultimately all the power rests with the individual, The states have more power than the feds but only at the sufferance of the individual, and the feds have the least power of all and it is at the sufferance of the states, and therefore by extension the individual. so where do the feds come off trying to say the states, and by extension the individual citizens of the states have no voice in the matter?

    Rorschach (c5574d)

  9. Wait, I’m confused, I thought Clement was Solicitor General. Am I mixed up?

    Rorschach (c5574d)

  10. Clement was Solicitor under Bush. Now it is Verelli.

    SCOTUSblog’s wrap-up says things went well for Arizona. Scalia completely on board, Thomas likely, and Roberts on board. Alito and Kennedy less clear, but Kennedy seemed swayed by argument that border states like Arizona are made to bear a huge burden from negative impacts from illegal immigrants, and have a right to protect their citizens by controlling their borders.

    shipwreckedcrew (beac54)

  11. ok apparently i got it backwards as to who was representing whom.

    Rorschach (c5574d)

  12. Paul Clement is also defending Defense of Marriage Act in courts across the country.

    He may very well face off against Ted Olson in the Supreme Court.

    Michael Ejercito (64388b)

  13. Hasn’t Obama already overseen far more deportations than Bush ever did?


    Leviticus (870be5)

  14. I know a lot of people on this site didn’t like Bush’s (non) handling of illegal immigration, for the record.

    Leviticus (870be5)

  15. Doesn’t Joe Arpaio already have enough Mexicans in pink underwear? By which, I’m saying, a law can be fine on its face and in its intent but horrible when it empowers a demented old Guido.

    nk (875f57)

  16. I can see my ten-year old on her godbrother’s front lawn, talking Greek to each other. And then fourteen days in pink underwear, while Sheriff Joe “investigates”. Laws are only as good as the people who enforce them and Arizona should address that problem first.

    nk (875f57)

  17. When AZ appeared before SCOTUS to defend their hard-nosed stance against employers re “undocumented workers”, the CW was that AZ was way out-of-bounds, and would be smited by the Supremes.
    That didn’t work so well for the purveyors of CW; and I don’t think this time will either.

    AD-RtR-OS! (b8ab92)

  18. The Justices acted stupidly.

    Wait for it.

    daleyrocks (bf33e9)

  19. The only reason to support this xenophobic law is if you are a racist xenophobe.

    JD (abb177)

  20. The Xenophobes would prevail if they trusted anyone at all.

    AD-RtR-OS! (b8ab92)

  21. JD – Alternatively you might just be a jeebus humping raaaaacist, natavist, jingoistic, hohophobe, who supports legal as opposed to illegal immigration, but that is just the kind of crazy talk that divides this country.

    daleyrocks (bf33e9)

  22. You must heart Teh Debbil

    JD (abb177)

  23. Early reports from the courtroom (Jan Crawford I think) were that even the wise Latina seemed not to be buying a good bit of the Government (Verelli’s) argument.

    elissa (6dfd55)

  24. Yeah, it’s Bush’s fault !

    Elephant Stone (0ae97d)

  25. Yeah, it’s Bush’s fault !

    Comment by Elephant Stone — 4/25/2012 @ 1:02 pm

    I would have to agree in part. Bush ran on a closed borders, tough on immigration stance, then promptly proved to the world that he was an open borders advocate. That rather pissed me off.

    Then I remembered that he is a politician, therefore full of crap. He was still better than the alternatives.

    Jay H Curtis (804124)

  26. Doesn’t Joe Arpaio already have enough Mexicans in pink underwear? By which, I’m saying, a law can be fine on its face and in its intent but horrible when it empowers a demented old Guido.

    Comment by nk — 4/25/2012 @ 12:08 pm

    I’m still waiting for the evidence to show that this “horrible old Guido” has been racially profiling anyone. Lots of accusations, mostly from leftists, but not enough evidence to file a complaint. The inJustice Department has been investigating him for at least 3.5 years and still haven’t filed charges against him. Just lots of rhetoric.

    As for the pink underwear and tent cities, I think we need to being those to the Mohave Desert to handle the overflow of all the punks who are being let out early due to lack of jail space. Prison should be punishment and it should be harsh enough to forever discourage anyone from going back.

    Jay H Curtis (804124)

  27. “Doesn’t Joe Arpaio already have enough Mexicans in pink underwear?”

    What is the objection to pink underwear? I have a whole drawer full.

    daleyrocks (bf33e9)

  28. It wasn’t pink when I bought it, but that’s another story.

    daleyrocks (bf33e9)

  29. Oh for the day halfway through Romney’s first term, when decisions like this routinely go 7-2.

    Kevin M (bf8ad7)

  30. It isn’t the pink skivvies that upsets so many folks in govt, it’s the green “mystery meat” that passes for bologna – too close to what is served in DoD EM messes for the Poohbahs on the Potomac.

    AD-RtR-OS! (b8ab92)

  31. NK, first off, I find your reference “Guido” offensive, and I’m not even Italian. But to answer your question, there are never enough if there are illegals still walking around free.

    Rorschach (c5574d)

  32. You’ll note BTW that Joe Arpaio was born to Italian immigrants, so he is a first generation American himself. But you’ll also note that those Immigrants came here LEGALLY.

    Rorschach (c5574d)

  33. On the other hand, looks like our lousy economy has a lot of illegals self deporting, LOL. So maybe if the Supremes uphold the AZ law even more will leave saving taxpayers BIG $$$. Really big $$$.

    TexasMom2012 (cee89f)

  34. Isn’t Arpaio’s middle name Guido?

    daleyrocks (bf33e9)

  35. Hell, Rorschach, you must come from the sticks. In the big city, a Guido is an American-born of Italian descent, a spaghetti-eater off the boat is a ginzo.

    nk (875f57)

  36. Seriously, I have not said anything here today that I have not been saying for five years. Arpaio is a very bad person.

    nk (875f57)

  37. nk, that’s a point of view, and valid; just not a very good one in the opinion of many.

    AD-RtR-OS! (b8ab92)

  38. And as far as I can find out in just two minutes on Google, his middle name is just “M.”.

    nk (875f57)

  39. Thanks to everyone who spoke favorably for Sheriff Joe. He was first elected in 1992 and reelected 5 times. He must be doing something right even if nk doesn’t agree.

    PatAZ (49dba0)

  40. And I’ve bitched about law in question, too, on Patterico’s previous posts about it, so since I’m not saying anything new I’ll shut up.

    nk (875f57)

  41. Now *there’s* a photo-op !

    Next time Mr Obama visits Arizona, Sheriff Joe could meet him at the airport, and respectfully give him a full outfit as used at the camp (pink unmentionables and all) …

    It would have to be at least as appropriate as the Obama Administrations various gifts to Great Britain …

    (innocent Brit grin)

    Alasdair (e7cb73)

  42. Back in the 1990s when Sheriff Joe cut off the porn on the prison’s closed circuit TV system and started playing Newt’s “To Renew America” video tape series a reporter asked him why he didn’t play something by a Democrat to be fair. He replied that the people in the prison already knew that stuff. The liberals were upset but I’ve been a fan ever since.

    Machinist (b6f7da)

  43. I understand I should read more carefully, but why did Kagan recuse herself here, as opposed to a case where she really had a conflict of interest??

    the bhead (a31060)

  44. Aladair, don’t forget the chromed bracelets and matching anklets…

    Rorschach (d62b54)

  45. Hey. Hey. Hey. Hasn’t Obama already deported more illegal immigrants than Bush ever did?

    I’m gonna go look through the archives for complaints about Bush’s lackluster enforcement of immigration law now.

    Leviticus (870be5)

  46. Leviticus – All you have to do is remember Bush pushing comprehensive immigration reform his second term and what a big flop it was.

    daleyrocks (bf33e9)

  47. Well, isn’t Obama operating under the same (unreformed) laws?

    Leviticus (870be5)

  48. When you look at the history of immigration laws, and see such things as “The Anti-Chinese Act”, from Congress, and you see Margaret Sanger devoting her life to keeping out “the dark races”, meaning Jews, Italians, and Greeks ….

    Immigration laws are mostly based on intolerance and prejudice.

    How are you going to get a decent meal in a Greek restaurant in Arizona without Mexican cooks in the kitchen, and Mexican busboys, while the girl next door says “Hello, I’m Busty and I will be your server”?

    nk (875f57)

  49. I know I said I’d shut up. Your fault for believing what a lawyer says.

    nk (875f57)

  50. I’m depending on legal immigrants and their children, nk.

    DRJ (a83b8b)

  51. My cab driver, this morning, was from Somalia. We didn’t get too personal, talked about whom Pulaski Road was named after, mostly. The Revolution, he asked me twice that it was 1776. Didn’t ask whether he was preparing for his citizenship interview.

    nk (875f57)

  52. I totally agree that a sovereign nation has a right and a duty to control its borders, BTW. It’s the ancillary things that trouble me.

    Castro sent us all his criminals and degenerates and Carter took them in because he wanted the Miami vote while he was trying to deport Iranian students. S***.

    nk (875f57)

  53. Not distinguishing between legal and illegal immigration is a favorite tactic of the left.

    BTW, I am all in favor of Busty servers.

    daleyrocks (bf33e9)

  54. nk – The Russians have taken over my local cab company. I’ve got no idea whether their drivers are here legally or not.

    daleyrocks (bf33e9)

  55. Well, that’s alright. The Chicago Police Department will take them as a new kind of Polish and just charge them their sanctuary tax.

    nk (875f57)

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    Poetry (6035be)

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