I’ve just left the Supreme Court arguments over SB 1070. Check back at Colorlines.com for more analysis and coverage throughout the week, and read our SB 1070 primer here.
The federal government got beat up today in the Supreme Court and if the Justices’ line of questioning is any sign, at least parts of Arizona’s SB 1070 are likely to stand. In the hearings, which began this morning at 10am and lasted for more than 20 minutes beyond the allotted time of an hour, the justices launched an aggressive line of questioning of the attorneys for the government and the state of Arizona.
As a general matter, the majority of the justices were skeptical of the federal government’s claim that Arizona’s SB 1070, which was enjoined soon after it’s passage by a lower court, fully preempts federal authority.
Most fundamentally, the justices took issue with the the government’s claim that the state of Arizona cannot mandate its cops to enforce immigration laws and detain undocumented immigrants. The argument here, which was central to Arizona’s appeal, is that the federal government regularly uses local police to detain undocumented immigrants through federal programs like the Secure Communities and 287g, which deputizes local police as immigration agents.
Paul Clement, who represented Arizona in the court said, “The Federal Government doesn’t like this statute, but they are very proud of their Secure Communities program. And their Secure Communities program also makes clear that everybody’s that’s booked at participating facilities is — eventually has their immigration status checked.”
He said Arizona merely, “borrowed the federal standard as its own.”
Solicitor General Donald Verrilli, who represented the government in court, argued that that Arizona goes beyond federal law by imposing its own sanctions on undocumented immigrants and setting its own priorities. The federal government, he said, has the prerogative to enforce immigration law and to set priorities about who it wishes to detain and deport.
Chef Justice John Roberts interrupted Verrilli to say, “It is not an effort to enforce Federal law. It is an effort to let you know about violations of Federal law. Whether or not to enforce them is still entirely up to [the federal government].”
Not surprisingly, Justice Scalia appeared to side almost entirely with Arizona and ventured to an extreme where not even the state of Arizona seemed uninterested in spending much time. Scalia argued in court that the states not only have the right to enforce federal immigration law but also have the right to wholly close their borders to undocumented immigrants.
Even Justice Sonia Sotomayor, who was the most sympathetic to the government’s claims, seemed unconvinced. “I’m terribly confused by your answer,” she said, as Verrilli attempted to explain why it’s okay for states and the federal government to cooperate when the federal government takes the initiative but not when a state moves to mandate their cops to do so.
“Putting aside your argument… that a systemic cooperation is wrong— you can see it’s not selling very well — why don’t you try to come up with something else?”
Many of the justices seemed concerned that the law could lead to the prolonged detention of suspected undocumented immigrants, US-Citizens and non-citizens with permission to be in the United States.
Verrilli also argued that the law would lead to harassment of Latinos by cops. “There’s an allegation of harassment,” he said. But Verrilli insisted that the government was not making claims about racial profiling. “We are not making allegations of racial profiling,” he said. “And given that you have a population in Arizona of 2 million Latinos, of whom only 400,000 at most are there unlawfully…”
This did not go over well. Scalia jumped in.
“Sounds like racial profiling to me. What does racial profiling have to do with immigration law?” Scalia asked.
Verrilli had little to offer.
Indeed, the government’s sole focus on the federal preemption grounds and not on the myriad other issues raised by SB 1070, including racial profiling, may make the case vulnerable in court. If the government did not convince the court that Arizona stepped out of line and preempted federal law, at least some of these contested portions of SB 1070 will go into effect.
Post has been updated since publication.