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.
