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.”
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.