It is a truth universally acknowledged that when the chief justice of the U.S. Supreme Court tells the U.S. solicitor general in the opening seconds of his presentation that “No part of your argument has to do with racial or ethnic profiling, does it?,” we will not be hearing a case about racial profiling. That is especially true when the solicitor general agrees. Never mind that a significant amount of the discussion over the constitutionality of Arizona’s S.B. 1070, the infamous state immigration law, ends up poring over both racial profiling and Fourth Amendment law. But you can forget that; those issues are not before the court today.
Among the provisions of the controversial law that was copied by five other states and enjoined by a federal appeals court last year is the “papers please” provision requiring state police to check the legal status of anyone stopped lawfully but who they believe to be in the country illegally. It does lead one to wonder what kinds of thin, pretextual stops might worry a Supreme Court justice. The case recycles last month’s leading Supreme Court advocates in the health care cases, with Paul Clement returning for his role as the Reasonable States-Rights Guy, and Solicitor General Donald Verrilli reprising his role of Sober Gentleman Advocate From Another Era, which at this moment in Roberts Court history feels like a guy who brings a butter dish to a gunfight. Verrilli looks like he wants to be any place but listening to Justice Antonin Scalia—the justice most likely to be pulled over for impersonating a paid Fox News contributor—analogizing the right to demand papers of suspected illegal immigrants to the Framers’ guarantee that the states’ rights to police their own borders included “inspecting incoming shipments to exclude diseased material.”
The question for the court today is a technical one: Is the federal government the sole authority on immigration law, or may states pass more draconian laws than the federal regime, so long as those laws purport to be working in concert with the federal regime, and not superseding them? Clement describes the Arizona law as having merely “borrowed the federal standards as its own.” Verrilli, on the other hand, says that “Arizona is pursuing its own policy of attrition through enforcement” and that the state law expressly aims at driving illegal aliens out of the state. Verrilli’s challenge to the provision that allows the police to determine the immigration status of those persons they “reasonably suspect” to be illegal meets a skeptical response even from Justice Sonia Sotomayor, who expresses some frustration with Verrilli and tells him she thinks one of his main arguments is "not selling very well."
Interestingly, it’s Sotomayor and Justice Samuel Alito who seem most concerned about what happens when U.S. citizens get swept up in the Arizona dragnet. Alito questions Clement about a hypothetical U.S. citizen, pulled over by police for driving 10 miles over the speed limit and suspected of being an illegal alien. “How would that work out? If you do the records check, you're not going to get anything back, right, because the person is a citizen.” Sotomayor even seems to tacitly acknowledge that she herself is the justice most likely to be arrested under the law, noting, “Today, if you use the names Sonya Sotomayor, they would probably figure out I was a citizen,” but that there is no U.S. citizen database. But the practical problem of arresting and even holding people while an immigration check is conducted doesn’t seem all that horrifying to anyone. Justice Stephen Breyer—the justice most likely to be pulled over for biking down the median—even assumes that he could write an opinion in such a way as to ensure that nobody will ever be held in violation of the Fourth Amendment. And in Chief Justice John Roberts’ hands, the requirement that Arizona police must check the immigration status of those they suspect to be here illegally becomes a tonic to federal incompetence. The federal government admits that it has limited resources and has chosen to prioritize the deportation of certain classes of illegal immigrants, rather than all of them. Arizona manages to make that look like rank laziness today.
Roberts says several times that nobody is forcing the federal government to do anything with those found to be in the state illegally, if the feds opt to do nothing with the information they obtain, it can instruct the officer to let them go. As Roberts puts it: “If you don’t want to know who is in this country illegally, you don’t have to.” Sotomayor appears to agree with this posture, asking Verrilli, “You don't have to take the person into custody. So what's left of your argument?” And Clement ends his rebuttal on the very same note, suggesting that it’s the government’s own stupid fault if people are wrongly tagged as here illegally, telling Sotomayor: “If there is some sloppiness in the way the federal government keeps its records so that there's lots of people that really should be registered but aren't, I can't imagine that sloppiness has a preemptive effect.”