It was a tough day for U.S. Solicitor General Donald Verrilli, who argued on behalf of the government against Arizona's stringent anti-illegal immigration law at the Supreme Court on Wednesday. The justices seemed deeply skeptical of the government's contention that Arizona cannot require police officers to ask about immigration status during routine stops. But, even though the justices were hard on Verrilli, oral arguments are difficult to interpret and tough questioning doesn't necessarily give any clues as to how the justices will rule.
The Obama administration sued to block Arizona's law, called SB1070, shortly after it passed two years ago, saying it interfered with federal authority over immigration. The law makes it a state crime for illegal immigrants to seek work or fail to carry proper immigration papers. It also requires police officers to check immigration status and make warrantless arrests for immigration crimes in some cases.
The justices asked Verrilli why the federal government bothered to set up a system for local police officers to ask and answer questions about suspects' immigration status if it did not intend for local officers to do so. They also pointed out that the government doesn't have to deport anyone who Arizona officers turn over to them after these stops. "It seems to me the federal government just doesn't want to know who's here illegally or not," Chief Justice John Roberts said. Verrilli denied that and said that once immigration checks become mandatory and a state policy, they interfere with the federal government's immigration priorities and could cause problems with other nations if large numbers of illegal immigrants are jailed in Arizona under SB1070's other statutes. Justice Sonia Sotomayor, part of the court's liberal wing, interrupted Verrilli to tell him she was "terribly confused" by his argument about why the state is not allowed to question people about their status. She didn't let up, later adding: "You can see it's not selling very well. Why don't you try to come up with something else?"
Justice Anthony Kennedy, generally the court's swing vote, asked repeatedly about how long someone would be detained while a police officer checked his or her status. "What if it takes two weeks" to determine someone's status, he asked. Paul Clement, representing Arizona, said it would take an average of only 11 minutes. Verrilli countered that it takes 70 minutes, when you take into account the hour wait to get through to the federal government's databases.
The lawyers also sparred over whether the statute's criminalization of illegal immigrants seeking work conflicts with Congress' intent, since the major 1986 immigration law criminalizes only employers, not employees (unless they commit fraud). Verrilli said it would be an "extraordinary" step to jail illegal immigrants for seeking work under state law. Under Kennedy's questioning, Clement admitted that the Arizona statute that would jail illegal immigrants for simply seeking work has "no direct analogue in federal law." But that fact alone, he said, is not enough to say that it conflicts with federal law. Sotomayor countered that Congress "explicitly rejected" criminalizing unauthorized people who seek work.
Wednesday's arguments were a rematch between the lawyers pitted against each other in last month's closely watched Supreme Court case on the legality of Obama's health care reform law. In those proceedings, Clement represented the 26 states challenging the law, while Verrilli again spoke for the federal government.
In Arizona v. U.S., Justice Elena Kagan recused herself because she was solicitor general when the Obama administration filed suit against the law. If the court splits 4-4, the 9th U.S. Circuit Court of Appeals' decision blocking the four major provisions of the law would stand. The decision is not expected until June.
Arizona Gov. Jan Brewer, Romney adviser Kris Kobach, who helped write the bill, and ousted Arizona state Sen. Russell Pearce were in the audience.
Outside the courthouse, Pearce said he was very "pleased" with how the arguments went. "I think it will be a minimum of 5-3" in favor of Arizona, he told Yahoo News. Kobach, meanwhile, said he thought the Justice Department was "on the ropes" for most of the arguments. A few hundred protesters shouting, "What do we want? Justice!" in Spanish demonstrated outside the Supreme Court, while pro-SB1070 picketers were scarce. Carmelo Cordoba, a 68-year-old legal immigrant from Ecuador, told Yahoo News he came to protest "to support all immigrants." He added in Spanish: "I know the persecution immigrants face."
3:11 p.m.: This post has been updated with further reporting.
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