Verrilli tries to advance the idea that if the states involve themselves in foreign relations it will displace the constitutional role of the federal government. He uses the words “mass incarcerations” three times this morning, suggesting that this would cause huge foreign relations problems for the government. That prompts Justice Anthony Kennedy to ask, “So you're saying the government has a legitimate interest in not enforcing its laws?” Scalia retorts, “Well, can't you avoid that particular foreign relations problem by simply deporting them?” Verrilli tries to explain that this could cause considerable friction between the United States and Mexico, to which Scalia shoots back: “So we have to enforce our laws in a manner that will please Mexico?”
Verrilli attempts to make the point that the current law constitutes “harassment” of Latinos, but Scalia shuts him down with the observation that this sounds like a “racial profiling” argument. He’s right, of course. But it’s one of the many ways the justices manage to scare the issue of racial inequity straight out of the chamber this morning and back out onto the plaza where protesters boo and shout at a triumphant Gov. Jan Brewer as she emerges from the building.
In her post-hearing statements, Brewer makes sure to say that the law has nothing to do with race, and also that President Obama cynically timed the suit he filed two years ago to pander to the Hispanic vote in the 2012 election.
Two other provisions at issue today make it a state crime to be in Arizona without legal immigration papers and criminalize any attempt by undocumented aliens to work or attempt to work in the state. They both appear to raise red flags for the justices, especially Roberts, Kennedy, and Alito, who don’t seem persuaded by Clement’s argument that Arizona’s zeal in punishing employees isn’t in conflict with Congress’ decision to punish employers. That raises the possibility that the decision here won’t be a neat one, with the court splitting on which parts of the statute survive and which must go. Since Justice Elena Kagan is recused from this case, a 4-4 split leaves the appeals court ruling intact. And other provisions of the law are currently being challenged on precisely the grounds that could not be spoken today, namely that they are racist, wasteful, and mean.
The Pew Hispanic Center released a report this week that found that as of now Mexican immigration to the United States has all but dried up. That fact was not in evidence in the court today, as Kennedy painted a graphic picture in which “the state of Arizona has a massive emergency with social disruption, economic disruption, residents leaving the state because of a flood of immigrants,” and Clement ended the day with dire warnings of murderous illegal El Salvadorans who shoot cops during routine traffic stops. How funny that we can talk about these fears, even after we’ve all stipulated that this law has nothing to do with race.