Well, it was uberlawyer Paul Clement versus Solicitor General Donald Verilli round two, before the Supreme Court Wednesday. Elena Kagan chose to recuse herself because of involvement in the case when she was solicitor general, and the issue was Arizona’s famous immigration laws. I waited a few days hoping to have audio of it and I hadn’t seen it appear until yesterday. You can listen here, and download the transcript from the same link.
Now let’s start by talking about the effect of recusal. What it means is that if there is a tie, the ruling below stands, but the decision has no precedental effect. In the case of Obamacare that is a problem because there are conflicting cases; so it would be the law of the land in some circuits, but not others. In this case, I believe it is only Arizona’s laws on the docket and thus this wouldn’t be a huge problem if the court below was upheld by default.
Let me also say something else. Some people have analyzed this and have argued that Verilli is screwing up as an advocate. Well, let me say something in defense of his quality as an advocate. Imagine you run an air conditioner company, and you assign a director of sales to each state and rate each director according to how many air conditioners sold per capita in each state. And you call Sales Director Verilli into your office one day and say, “Damnit, Donald, of all of my fifty sales directors, you are the worst. You have sold less air conditioners per capita than any of the other directors. Johnson who is in charge of sales in Texas has sold ten times as many air conditioners as you. Wilson in Arizona has sold 9 times as many per capita. What do you have to say for yourself?”
And Verilli replies, “sir, you have assigned me to Alaska.”
Okay, that is a weak attempt at a joke, but with a serious point. This might be my political biases coming through, but it seems to me that comparing Verilli’s success to Clement’s might be a bit unfair. This is especially true when it comes to the part of the law that requires local police to run an immigration status check whenever they stop someone based on state law concerns and if that person is here illegally to report to federal officials that they have this person in custody. Federal law makes it clear that local police can do that. Federal law also makes it clear that no state can pass a law forbidding local police from doing that. And Verilli admits that there would be no legal problem if every law enforcement official in the state decided to do exactly what the law required on their own. So Verilli is reduced to arguing that the Constitution (in combination with Federal immigration law) prohibits Arizona from passing a law requiring local police to do what they can do voluntarily. If that sounds like a hard argument to make, that’s because it is.
So if Verilli can be criticized at all for all of this, it is for bringing the suit at all, at least on those terms. I think that the argument in regards to the reporting provision was so weak that it undermined the government’s arguments in relation to the other parts. A good lawyer would have said to the Obama administration that if they pushed forward on that part of the challenge, that it would harm the rest of their case. But who is to say Verilli didn’t do that? Maybe he said that to Obama and Obama said, “I don’t care. Challenge it anyway.” And then in that case, it wouldn’t be Verilli’s fault, now would it?
Anyway, so let’s go through the argument, more or less in chronological order.
The Ninth Circuit agreed with respect to four provisions, but only by inverting fundamental principles of federalism.
The Ninth Circuit essentially demanded that Arizona point to specific authorization in Federal statute for its approach. But that gets matters backwards.
Hey, did he mention that this is an appeal of a Ninth Circuit decision? Well, in case you did not know, this was an appeal of a decision from the Ninth Circuit. As Patterico commenter SPQR once wrote there is an old Supreme Court joke on the subject:
The attorney stands up in front of the Supreme Court and opens with: “May it please the Court, we are appealing a decision of the Ninth Circuit … and we have other arguments …”
Among lawyers, the Ninth Circuit has become famous for its very high rate of reversal before the Supreme Court, so much so that some allege that in the Supreme Court, the Ninth Circuit is presumptively wrong. So it seems to be unlikely to be a coincidence that Clement highlighted that he was appealing a Ninth Circuit decision.
Now one issue that comes up a few times is sovereignty. Here’s Scalia asking about that, and I think Clement misunderstood for a moment when Scalia was getting at:
JUSTICE SCALIA: You'll concede that the --that the State has to accept within its borders all people who have no right to be there, that the Federal Government has no interest in removing?
MR. CLEMENT: No, I don't accept that, Justice Scalia, but –
JUSTICE SCALIA: That's all the statute --and you call up the Federal Government, and the Federal -- yes, he's an illegal immigrant, but that's okay with us.
MR. CLEMENT: Well --
JUSTICE SCALIA: And the State has no power to close its borders to people who have no right to be there?
MR. CLEMENT: Well, Justice Scalia, here's my response, which is all of this discussion, at least as I've understood it, has been about 2(B) and to a lesser extent 6. Now, section 3 of the statute does provide an authority under State law to penalize somebody who has violated essentially the Federal registration requirement. So if that's -- as to that provision, there would be a State authority, even under these hypotheticals, to take action with respect to the individual --
JUSTICE KENNEDY: I think --
MR. CLEMENT: -- but not with respect to the Federal --
JUSTICE KENNEDY: I think Justice Scalia's question was the -- was the broader one, just as a theoretical matter. Can we say, or do you take the position that a State must accept within its borders a person who is illegally present under Federal law?
MR. CLEMENT: Well, and I think –
JUSTICE KENNEDY: And that is by reason of his alien --
MR. CLEMENT: And I think my answer to that is no. I think the reason my answer is no has more to do with our defense of section 3 and other provisions than it does with respect to the inquiry and arrest authority provisions, 2(B) and 6.
And at one point, Clement makes it clear that part of the real issue is sanctuary cities:
It does do one thing that's very important, though, which it does have the effect of overriding local policies that actually forbade some officers from making those communications and -- because that's one of the primary effects of 2(B). It just shows how difficult the government's preemption argument is here, because those kind of local policies are expressly forbidden by Federal statute. 1373(a) and 8 U.S.C. 1644 basically say that localities can't have those kind of sanctuary laws.
And here’s an exchange that leapt out at me at the time and has become more significant as I thought about the argument that day:
JUSTICE KENNEDY: But then the government on this section is going to come and say, well, there may be -- this must be -- this -- the enforcement of this statute, as Arizona describes it, will be in considerable tension with our -- with our basic approach; isn't that what I'm going to hear from the government?
MR. CLEMENT: It may be what you're going to hear, Justice Kennedy, but I don't think you just take the Federal government for its word on these things.
Don’t take their word for it? Well, in fact, I think he is right. There are several times you will see where I think that Verilli’s responses was just plain B.S. And I think the answer usually is that politics prevented him from answering truthfully—that is, if he said what he really believed, it might cause problems for his boss, Obama.
Now the big Constitutional issue here is a doctrine called “preemption.” It is the idea that actions of the Federal Government, where the Federal Government is empowered to act, can trump state actions. There are indeed constitutional roots to this doctrine. There is what lawyers call the Supremacy Clause, which says in Article VI, Paragraph 2 that
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
What the Ninth Circuit held was that not only did the Constitution prohibit the states from passing laws that contradicted the Constitution, laws and treaties of the United States, but state laws also couldn’t contradict the policies of the President. So because it was executive policy not to vigorously enforce the laws on immigration, the states were prohibited from doing the same.
That is a very broad argument.
Verilli was also trying to argue that not only was Arizona’s laws preempted by what Congress passed, but also by what it failed to pass. In particular, he was arguing that while Congress punished employers for hiring illegal workers, Congress also chose not to punish the illegal workers themselves, and this meant that Arizona could not do the same, an argument Sotomayor explored:
JUSTICE SOTOMAYOR: The preemption language would be geared to what was decided to be punished. It seems odd to think that the Federal government is deciding on employment sanctions and has unconsciously decided not to punish employees.
MR. CLEMENT: But, Justice Sotomayor, there's a big difference between Congress deciding not as a matter of Federal law to address employees with an additional criminal prohibition, and saying that that decision itself has preemptive effect. That's a rather remarkable additional step.
One thing I also noted as the debate went on is that Sotomayor was getting interrupted a lot. I don’t know what to make of it, but I recalled at least three times when she started to ask a question and then another justice jumped in with a different question and her question seemed to be missed.
And that is all to note about Clement’s argument. Things went pretty smoothly for him and I didn’t see a lot of skeptical questioning of him.
Anyway, moving on we get the Solicitor General Verrilli. I will note that they call him “General Verrilli” even though his “generalship” is of civilian nature only. As I have said before, the main job of the Solicitor General is be the President’s lawyer before the Supreme Court.
Anyway, right off the bat the put aside the chief political argument against the law—that it will supposedly lead to racial profiling:
CHIEF JUSTICE ROBERTS: Before you get into what the case is about, I'd like to clear up at the outset what it's not about. No part of your argument has to do with racial or ethnic profiling, does it? I saw none of that in your brief.
GENERAL VERRILLI: That's correct.
CHIEF JUSTICE ROBERTS: Okay. So this is not a case about ethnic profiling.
GENERAL VERRILLI: We're not making any allegation about racial or ethnic profiling in the case.
And also early on Sotomayor poses Scalia’s big question to Verrilli:
JUSTICE SOTOMAYOR: General, could you answer Justice Scalia's earlier question to your adversary? He asked whether it would be the Government's position that Arizona doesn't have the power to exclude or remove -- to exclude from its borders a person who's here illegally.
GENERAL VERRILLI: That is our position, Your Honor. It is our position because the Constitution vests exclusive authority over immigration matters with the national government.
Also Scalia brings up an important point in the next exchange. Ask yourself a simple question. Here is a copy of the text of the Constitution. Where does it say that immigration is a matter of federal dominion? Oh, whoops, it doesn’t. It does say that the Federal Government has a right to make the laws on naturalization, but the power to control immigration—the traveling of people into and out of the country—is not expressly granted to the Federal Government. Instead the power to control this has been argued to be a matter of federal dominion based on three considerations. The first is the provisions making naturalization a federal matter. The second is the international commerce clause. And the third is the need for the Federal Government to control matters of foreign relations—since immigration impacts on foreign relations. Which I consider to be a somewhat dubious reading of the provisions in question. I have every sympathy with the idea that immigration should be a matter of federal dominion, but that is not sufficient to convince me that the founders did assign it that power.
JUSTICE SCALIA: All that means, it gives authority over naturalization, which we've expanded to immigration. But all that means is that the Government can set forth the rules concerning who belongs in this country. But if, in fact, somebody who does not belong in this country is in Arizona, Arizona has no power? What does sovereignty mean if it does not include the ability to defend your borders?
GENERAL VERRILLI: Your Honor, the Framers vested in the national government the authority over immigration because they understood that the way this nation treats citizens of other countries is a vital aspect of our foreign relations. The national government, and not an individual State –
JUSTICE SCALIA: But it's still up to the national government. Arizona is not trying to kick out anybody that the Federal government has not already said do not belong here. And the Constitution provides -- even -- even with respect to the Commerce Clause -- "No State shall without the consent of Congress lay any imposts or duties on imports or exports except," it says, "what may be absolutely necessary for executing its inspection laws." The Constitution recognizes that there is such a thing as State borders and the States can police their borders, even to the point of inspecting incoming shipments to exclude diseased material.
There is also a confused exchange on the ability of states to enforce federal law:
JUSTICE SCALIA: Do you have any example where -- where enforcement discretion has the effect of preempting state action?
GENERAL VERRILLI: Well, I think we should think about section 3 of the law, Your Honor. I think it will help illustrate the point –
JUSTICE SCALIA: I'll point out another case of ours where we've said that essentially the preemption of state law can occur, not by virtue of the Congress preempting, but because the Executive doesn't want this law enforced so -- so rigorously, and that preempts the state from enforcing it vigorously. Do we have any cases –
GENERAL VERRILLI: I think the preemption here -- focusing for a moment on section 3 – the preemption here flows from judgments of Congress, from the registration system that Congress set up in sections 1301 through 1306, from the decision of Congress in section 1103 in the law to vest the Secretary of DHS and the Attorney General with the authority to make the judgments about how this law is going to be enforced –
JUSTICE SCALIA: Well, they do that with all Federal criminal statutes. And you acknowledge that as a general matter, states can enforce Federal criminal law, which is always entrusted to the Attorney General.
I think initially Verilli didn’t quite understand Scalia’s question—which I also saw Clement do on a similar issue, when Scalia seemed to be helping him. I would also note how bizarre this argument is. My understanding is that originally in our nation, most federal laws were enforced primarily in state courts, including their criminal courts. Which means we are turning history on its head.
Now if you want to know why people felt Verrilli didn’t do so well, I think this exchange with Roberts is a good example of that:
CHIEF JUSTICE ROBERTS: Exactly. The Federal Government has to decide where it's going to use its resources. And what the state is saying, here are people who are here in violation of Federal law, you make the decision. And if your decision is you don't want to prosecute those people, fine, that's entirely up to you. That's why I don't see the problem with section 2(B).
GENERAL VERRILLI: Here's the other half -- here's the other half of the equation, Mr. Chief Justice, which is that they say if you're not going to remove them, we are going to prosecute them. And that means that the -- and I think this does get at the heart of why this needs to be an exclusive national power –
CHIEF JUSTICE ROBERTS: Only under section 3 and section 5.
GENERAL VERRILLI: Yes, but those are – but what you're talking about is taking somebody whose only offense is being unlawfully present in the country and putting them in jail for up to 6 months, or somebody who –
CHIEF JUSTICE ROBERTS: Well, let's say you're worried about –
GENERAL VERRILLI: -- or like 30 days, forgive me; 6 months for employment.
CHIEF JUSTICE ROBERTS: There you go. Right. For the notification, what could possibly be wrong if Arizona arrests someone, let's say for drunk driving, and their policy is you're going to stay in jail overnight no matter what, okay, what's wrong during that period by having the Arizona arresting officer say, I'm going to call the Federal agency and find out if this person is here illegally, because the Federal law says the Federal agency has to answer my question? It seems an odd argument to say the Federal agency has to answer the state's question, but the state can't ask it.
GENERAL VERRILLI: Well, we're not saying the state can't ask it in any individual case. We recognize that section –
CHIEF JUSTICE ROBERTS: You think there are individual cases in which the state can call the Federal Government and say: Is this person here illegally?
GENERAL VERRILLI: Yes, certainly, but that doesn't make –
CHIEF JUSTICE ROBERTS: Okay. So doesn't that defeat the facial challenge to the Act?
GENERAL VERRILLI: No. I don't think so, Mr. Chief Justice, because the -- I think the problem here is in that -- is in every circumstance as a result of section 2(B) of the law, backed by the penalties of section 2(H), the state official must pursue the priorities that the state has set, irrespective of whether they are helpful to or in conflict with the Federal priorities.
And then Alito steps in and gives him a difficult time:
JUSTICE ALITO: Well, suppose that every -- suppose every law enforcement officer in Arizona saw things exactly the same way as the Arizona legislature. And so, without any direction from the legislature, they all took it upon themselves to make these inquiries every time they stopped somebody or arrested somebody. Would that be a violation of Federal law?
GENERAL VERRILLI: No, it wouldn't be, Your Honor, because in that situation they would be free to be responsive to Federal priorities, if the Federal officials came back to them and said, look, we need to focus on gangs, we need to focus on this drug problem at the border –
JUSTICE ALITO: But what if they said, well, we don't care what your priorities are; we have our priorities, and our priority is maximum enforcement, and we're going to call you in every case? It was all done on an individual basis, all the officers were individually doing it –
GENERAL VERRILLI: Yes, well –
JUSTICE ALITO: -- that would be okay?
GENERAL VERRILLI: Well, if there's a – if there's a state policy locked into law by statute, locked into law by regulation, then we have a problem. If it's not –
JUSTICE SOTOMAYOR: General –
GENERAL VERRILLI: -- I mean, the line is mandatory versus discretionary –
JUSTICE ALITO: That's what I can't understand because your argument -- you seem to be saying that what's wrong with the Arizona law is that the Arizona legislature is trying to control what its employees are doing, and they have to be free to disregard the desires of the Arizona legislature, for whom they work, and follow the priorities of the Federal Government, for whom they don't work.
And even Sotomayor was having trouble with his argument—because there really is no good argument on this point, in my opinion. So we get this bit:
JUSTICE SOTOMAYOR: I'm sorry. I'm a little confused. General, I'm terribly confused by your answer. Okay? And I don't know that you're focusing in on what I believe my colleagues are trying to get to. Making the -- 2(B) has two components, as I see it. Every person that's suspected of being an alien who's arrested for another crime -- that's what Mr. Clement says the statute means -- the officer has to pick up the phone and call -- and call the agency to find out if it's an illegal alien or not. He tells me that unless there's another reason to arrest the person -- and that's 3 and 6, or any of the other provisions -- but putting those aside, we're going to stay just in 2(B), if the government says, we don't want to detain the person, they have to be released for being simply an illegal alien, what's wrong with that?
GENERAL VERRILLI: Well –
JUSTICE SOTOMAYOR: Taking out the other provisions, taking out any independent state-created basis of liability for being an illegal alien?
GENERAL VERRILLI: I think there are three. The first is the -- the Hines problem of harassment. Now, we are not making an allegation of racial profiling; nevertheless, there are already tens of thousands of stops that result in inquiries in Arizona, even in the absence of S.B. 1070. It stands to reason that the legislature thought that that wasn't sufficient and there needed to be more. And given that you have a population in Arizona of 2 million Latinos, of whom only 400,000 at most are there unlawfully –
Now to break in for a moment, I have said that sometimes politics forced Verilli to engage in a little B.S. in my opinion. Usually that meant he couldn’t make the argument he needed to make. Here he wanted to make a political argument, that he knew had no legal relevance. The President has regularly argued that this law somehow leads to racial profiling. To me the argument never made sense: why would state officials being systematically required to report to the federal government be more likely to come from racial profiling, than if they did so on an ad hoc basis, as they were already doing? But in any case, that argument couldn’t be made in a facial challenge to the law—as this was—because nothing in the law endorsed or allowed racial profiling. Instead the argument might be made once the law went into effect—they could argue that certain ethnicities were being profiled. So here he was trying to sneak in an irrelevant consideration, for some political purpose—or so that is how I read it. And as the exchange continues, Scalia seems to pick up on that.
JUSTICE SCALIA: Sounds like racial profiling to me.
GENERAL VERRILLI: And they're -- and given that what we're talking about is the status of being unlawfully present –
JUSTICE SOTOMAYOR: Do you have the statistics as to how many arrests there are and how many -- and what the -- percentage of calls before the statute?
GENERAL VERRILLI: There is some evidence in the record, Your Honor. It's the -- the Palmatier declaration, which is in the Joint Appendix, was the -- he was the fellow who used the run the Law Enforcement Support Center, which answers the inquiries. That -- that declaration indicates that in fiscal year 2009, there were 80,000 inquiries and --
And in this exchange, Scalia really puts the screws on:
JUSTICE SCALIA: Anyway, what -- 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.
GENERAL VERRILLI: I think it could, but I think that's quite –
JUSTICE SCALIA: 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 -- we're going the let it go. And the state's interfering with our -- with our whole scheme here because it's prosecuting all these bank robbers.
GENERAL VERRILLI: Well, of course, no one would –
JUSTICE SCALIA: Now, would anybody listen to that argument?
GENERAL VERRILLI: Of course not.
JUSTICE SCALIA: Of course not.
But for the most part we are seeing the usual conservative suspects giving him a hard time. The Chief Justice, Scalia, Alito... Thomas probably would, too, except he famously doesn’t see the point. But more troublesome is how even relative “liberals” like Sotomayor and in this case, Breyer, seemed to be skeptical of the U.S. position:
JUSTICE BREYER: Look, in the Federal statute, it says in 1373 that nobody can prohibit or restrict any government entity from making this inquiry of the Federal Government. And then it says that the Federal Government has -- any agency -- and then it says the Federal has an obligation to respond. Now, assuming the statute were limited as I say, so nothing happened to this individual, nothing happened to the person who's stopped that wouldn't have happened anyway, all that happens is the person – the policeman makes a phone call. Now that's what I'm trying to get at.
If that were the situation, and we said it had to be the situation, then what in the Federal statute would that conflict with, where we have two provisions that say any policeman can call?
And not everything Verilli said fell on deaf ears. For instance, I think he won points with this bit:
And the [Arizona] immigration function is to try to -- to prosecute these people. And, by the way, you can prosecute somebody, they can be put in jail for 30 days here; but, under Federal law, a violation of 1306(a) is a continuing offense. So, the day they get out of jail for that 30 days, they can be arrested again, and this can happen over and over again.
And interestingly none of the justices had an answer to that concern and if Arizona had an answer to that, I didn’t hear it in the argument.
But here’s a good example of how Verrilli can’t just tell the truth and I think the reason why is political:
JUSTICE KENNEDY: So you're saying the [federal] government has a legitimate interest in not enforcing its laws?
GENERAL VERRILLI: No.
But in fact that is precisely what his argument rests on—that the decision not to enforce the law is as preemptive as the law itself. And that is what the lower court held. And without that argument, his entire case collapses.
I also found that Sotomayor seemed to express sympathy for the U.S. position with this question:
JUSTICE SOTOMAYOR: So if you run out of your house without your driver's license or identification and you walk into a park that's closed and you're arrested, you -- they make the call to this agency. You could sit there forever while they –
And we reach another example where Verrilli just can’t tell the truth because of politics:
JUSTICE SCALIA: So we have to -- we have to enforce our laws in a manner that will please Mexico. Is that what you're saying?
GENERAL VERRILLI: No, Your Honor, but what it does -- no, Your Honor, I'm not saying that –
JUSTICE SCALIA: Sounded like what you were saying.
GENERAL VERRILLI: No, but what I am saying is that this points up why the Framers made this power an exclusive national power.
But in fact that is exactly what the argument is, also. That the rigid enforcement of the law will upset foreign powers and affect foreign relations, and therefore the federal government has to be able to decide if such enforcement will occur.
And that’s about it. My impression overall is that, it seemed like there was almost no support for striking down Arizona’s law requiring local law enforcement to determine the legal status of each person, and then detaining them if the Federal official wants. That part seems pretty safe. But there were other provisions criminalizing the act of being present illegally in Arizona, and also punishing illegal immigrants for seeking illegal work and those seemed more in doubt.
I take that from the argument because through the entire hearing I saw a lot of holes being poked at the U.S.’s argument in regards to the mandatory reporting part, but there wasn’t much defense offered by any of the justices—or indeed much being said at all—in defense of the other parts. At most you saw some talk from Scalia about how as a matter of state sovereignty states had a right to throw out people who didn’t belong.
But those feelings are not in stone and indeed there is a lot I didn’t hear. Thinking back to the Obamacare arguments from a bit back, I could hear in the questions signs of opinions being formed. As I said at the time, I could imagine that Breyer was giving us a preview of how he would write the opinion in favor of upholding Obamacare—a dissent or a majority opinion depending on who got the votes. Here I could hear a little of Scalia’s potential opinion, and you could see the conservatives giving Verrilli hell, but you didn’t the liberals rushing in to prop him up... or knock him down. They were just... there. And you didn’t see Kennedy asking one side or the other a withering question or two. For the most part they were quiet. So while I think the reporting provision is probably safe, I don’t have any confidence in what they will do with the rest of the law. In my opinion, it could go either way.
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