Acting Solicitor Gen. Neal Katyal has 10 minutes to represent the Obama administration, and he uses it to try to persuade the court that the 1986 federal law "broadly swept away state and local laws, pre-empting any sanction upon those who employ unauthorized aliens." The parenthetical exempting "licensing laws," he says, was only Congress trying to "preserve the state's and localities' traditional power for fitness to do business."
Arizona Solicitor General Mary O'Grady opens with the argument that "through their police powers, states traditionally have the authority to regulate the conduct of employers within their jurisdiction to determine what conduct warrants issuance of a state license." Justice Ruth Bader Ginsburg interrupts. Isn't it a bit odd, she asks, that under the federal statute, "Arizona cannot impose a fine even in a modest amount, but it can revoke someone's license to do business?"
Again Scalia jumps in. "Perhaps Congress never expected that the states would have to resort to such massive measures," he says. It's all because the federal law isn't being enforced!
Justice Stephen Breyer observes that Congress carefully balanced the interests of discouraging illegal workers and protecting minorities. And then "Arizona comes along and says: 'I'll tell you what: If you discriminate, you know what happens to you? Nothing. But if you hire an illegal immigrant, your business is dead.'" O'Grady runs into some more trouble with the court's liberals because the Arizona law requires employers to use a federal system called E-Verify to check employee immigration status, but the system was intended by the feds to be voluntary and is prone to frequent errors. Breyer points out that an employer using the system would end up firing perfectly legal workers while Ginsburg protests that "this is a federal resource, and the federal government has said, 'We want this to be voluntary.' How can Arizona set the rules on a federal resource?"
Justice Anthony Kennedy is similarly bothered by the mandatory use of the E-Verify system: "You are taking the mechanism that Congress said will be a pilot program that is optional and you are making it mandatory," he tells O'Grady. "It seems to me that's almost a classic example of a state doing something that is inconsistent with a federal requirement."
There is yet more wrangling about legislative intent and whether the Arizona system is merely a humble licensing scheme, and then Phillips rises for his three-minute rebuttal. He manages to name-check Justices Sotomayor, Breyer, Samuel Alito, and Scalia in that very brief time—a record, I suspect—although at this point it's fairly clear that at least Alito, Chief Justice John Roberts, Scalia, and probably Clarence Thomas will have no trouble upholding this Arizona immigration law.
None of this tells us much about the fate of the mother of all immigration laws, which raises different pre-emption issues and won't be heard this term. But it certainly suggests that there is a good chunk of the court that isn't terribly troubled by the prospect of the states jumping into the immigration game if they feel that the feds aren't playing to win.
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