How do you know you’ve had a bad day at the Supreme Court — or in Donald Verilli’s case, another bad day? When a justice who is presumably sympathetic to your case tells you your argument “isn’t selling very well” and you might want to try coming up with another, you’re probably having a bad day. Once again, the rough treatment of the Solicitor General in a case brought by the Obama administration seems to signal that the White House will suffer a big loss:
The “show me your papers” provision of Arizona’s tough immigration enforcement law is most familiar to the public. It is also likely to withstand judicial scrutiny. …
In Wednesday’s oral arguments, Supreme Court justices showed little sympathy for the federal government’s complaint that state police officers would violate federal immigration jurisdiction if they check the status of someone they pull over. That argument is seen by legal analysts as the weakest in the government’s case against the Arizona statute.
Justice Antonin Scalia all but laughed the federal government’s lawyer out of the courtroom when he suggested that Arizona police officers would somehow deter the federal government from enforcing immigration by calling federal officials to ask about a person they stop. “Arizona isn’t trying to kick out anybody that the federal government hasn’t already said doesn’t belong here,” he said. “The Constitution recognizes that there is such a thing as state borders and a state can police their borders.”
Scalia wasn’t the only justice to scoff, either:
Chief Justice John Roberts noted the Arizona law only allows legal status checks if the police officer has pulled over a person for some other reason. The Arizona officer is simply alerting the federal government to an illegal alien’s presence. “It seems to me the federal government just doesn’t want to know who’s here or not,” Roberts said.
Even Justice Sonia Sotomayor, who offered the most sympathy for the government’s position, pointed out to Verrilli that his argument “isn’t selling very well”—namely that a systematic system of status checks is somehow different from the current ad hoc one.
Nor did Sotomayor buy it herself:
“These decisions have to be made at the national level,” he said.
But even Democratic-appointed justices were uncertain of that.
That’s not to say that the White House lost on all fronts today, and it’s good to bear in mind that questions during oral arguments are not a flawless predictor of eventual decisions. The administration did better when arguing that the provision of the law that imposes criminal penalties for illegal immigrants treads on federal jurisdiction, and on associated ID and work issues. National Journal called these “almost a side note to the conversation,” with attention focused on the issue of whether a state can require law enforcement to check on legal residency when detaining suspects for other reasons. Their report does include one exchange that might indicate that Justice Anthony Kennedy might still have some reservations:
However, Justice Anthony Kennedy pursued a line of questioning that could potentially lead the justices to invalidate the status check provision. He asked whether a person would be detained longer than they otherwise would have been because of the immigration status check. Clement was unable to assure Kennedy that the detention time would not be lengthened.
That’s interesting, but probably not all that relevant. There are already limitations on how long suspects can be held without filing charges, usually 48-72 hours, and a question of legal residency would not override those limitations. At the end of the time limit, the state or locality would have to either file some sort of criminal charges and have a judge determine whether to continue holding a suspect or offer bail, or release the suspect without charges. If states and localities don’t have the ability to charge a detainee with illegal residency, and it seems likely that the justices will rule that way, then either the suspect would get arraigned on other charges or released.
If the White House loses their challenge to the most controversial part of the law, expect the Left to go after Verrilli again as they did after his difficult day defending ObamaCare. He may have performed better this time, though, at least on the secondary issues. And once again, the problem was less with Verrilli and more with the administration’s positions that Verrilli had to defend.