"Counsel, do you have any other arguments?"

These are not words a lawyer wants to hear from the bench, especially if his only honest answer is, "Your Honor, I got nuthin'."

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.


Grim said...

This was a real embarrassment. Our taxes are paying for these guys to concoct these arguments and then make them. We'll be paying for their retirement, too (and not soon enough, since we are stuck with having to do it).

Unlike states with regard to the federal government, cities and counties are creatures of state authority (at least in Georgia they are, and I can't see why it would be otherwise elsewhere unless a city got special protections written into the state constitution). There's no reason for the Federal government to involve itself in a 'conflict' between the state and a subordinate organization that the state can dissolve if it wants to do so. We can just have the state police take over the county sheriff or local PD, and they can run the immigration checks.

bthun said...

DOJ is having quite a long run at the Kabuki Theater.

Sadly we can not throw tomatoes at some of the actors, but we can get the hook after these latter day vaudevillians.

193 days and a wake up seems like an eternity...

Anonymous said...

If this is the Feds' legal A-team, I hate to imagine what their minor-league attorneys do. This is embarrassing, as Grim said. And it is probably not how someone wants to be immortalized in law-school textbooks.


MikeD said...

That's gotta sting.

E Hines said...

The whole argument can be viewed here; it's laughable or sad, depending on your perspective on the immigration question.

I wouldn't blame Verilli, though; he's dealt a bad hand. His choice here is to defend the government's position as well as he can, or resign.

Still, the Supremes haven't issued their ruling, and a 4-4 split upholds the Federal government's position. It's not time to cheer.

Eric Hines

Assistant Village Idiot said...

Analogising to simpler crimes does often make the whole deal clearer, and I thank Scalia for doing that.

douglas said...

"His choice here is to defend the government's position as well as he can, or resign."

Then if he were wise, looking at the arguments they had before them to make, he should have resigned. What's the benefit of taking the fall for the administration in a hopeless battle? There's not even some morale boost to be gained.

MikeD said...

True believers (of all stripes) are willing to fall on their swords for The Cause. And it's entirely possible he honestly felt it was so self-evident that this law was unconstitutional (delusional though we might consider that position to be) that it wouldn't be very hard to make the case. But true wisdom includes understanding that just because you see things in a certain light does not mean everyone else does. And if you're going to present your case to anyone else, prepare for the worst case scenario. Verilli did not.

BillT said...

This was a real embarrassment. Our taxes are paying for these guys to concoct these arguments and then make them.

The biggest embarrassment is Eric Holder, who condemned the law out of hand and committed DoJ to contesting it -- then admitted he had neither read the law nor could give a brief synopsis of what it actually said.

Texan99 said...

Bill, Bill, you old dinosaur you. What the law says? That's an awfully primitive way of looking at it. How does the law make you feel? More to the point, how does it make the electorate feel? Sadly, the latter arguments play very well to many judges, by the way. I'm only surprised that so many leftist Supreme Court Justices are still committed to applying a more rigorous standard. It gives me hope.