Arguments before the Supreme Court this week on the Arizona immigration law went far worse than I ever imagined they would, in part because I haven't been playing close attention to the exact position of the federal government. I did not realize, for instance, that federal law already permits local police to check the immigration status of a person they suspect of being an illegal alien. Arizona's law merely makes such a check mandatory. The purpose of the change apparently was to permit the state authorities to override local preferences for annulling the federal immigration laws; in other words, this law works out a conflict between state and municipal authorities, not between state and federal authorities.
I also did not realize that the government stipulated at the outset that it was offering no arguments about the danger of profiling. The law itself is race-neutral, so any such argument from the DOJ would have to await the implementation of the state law and the application of the usual statistical tests. There may come a day when we have to endure "disparate impact" arguments on this subject, but today is not that day.
Remarks from the Justices amply demonstrated how badly the federal government's arguments were faring, but some of the worst came from moderate Justice Kennedy, from new, presumptively liberal Justice Sotomayor, and even from obviously liberal Justice Breyer. Breyer asked how a provision that would require policemen call to check immigration status can be said to conflict with a federal rule that allows policemen to call to check immigration status. Sotomayor got the DOJ to admit that the state would merely alert the feds that they'd discovered an illegal alien; nothing Arizona is doing (or could do) would require the feds to take the aliens into custody, if they didn't feel that doing so was a high priority or worth the expense. (I'd just expect the feds to set up an automated message system that no one ever checks. "Press one if you're wasting our time with more reports of illegal aliens, you red-state poster-children for hate crimes.") Justice Kennedy's question was even more devastating: "So you're saying the government has a legitimate interest in not enforcing its laws?" And as has been so widely reported, Justice Roberts stated, "It seems to me that the Federal Government just doesn't want to know who is here illegally or not." But none of the Justices was impressed by the argument that federal pre-emption means the states are prohibited from giving the feds information they'd prefer not to know.
I don't know of any precedent for this situation, where the feds want to keep a law on the books, then claim pre-emption over the issue whether it will be enforced as written. As Justice Scalia pointed out:
Anyway, what's wrong about the states enforcing Federal law? There is a Federal law against robbing Federal banks. Can it be made a state crime to rob those banks? I think it is. But does the Attorney General come in and say, you know, we might really only want to go after the professional bank robbers? If it's just an amateur bank robber, you know, we're going to let it go. And the state's interfering with our whole scheme here because it's prosecuting all these bank robbers.