Free Markets, Free People
When the oral arguments were being made for ObamaCare, I made the observation that Solicitor General Donald Verrilli sounded like a man trying to defend arguments he really didn’t believe in. Add to that the fact that they were weak arguments and you have a man facing the Supreme Court who sounded like he was in over his head.
Verrilli had another such day yesterday, as John Hinderaker at Powerline notes. This time the court was hearing arguments about the Arizona immigration law. Hinderaker reviewed the transcript of Verilli’s arguments and concluded, “the problem was not with Verrilli but rather with the quality of the arguments that he was required to make by his client, the Obama administration.”
JUSTICE KENNEDY: So you’re saying the government has a legitimate interest in not enforcing its laws?
GENERAL VERRILLI: No. We have a legitimate interest in enforcing the law, of course, but it needs to be — but these — this Court has said over and over again, has recognized that the — the balance of interest that has to be achieved in enforcing the — the immigration laws is exceedingly delicate and complex, and it involves consideration of foreign relations, it involves humanitarian concerns, and it also involves public order and public –
Hinderaker calls the response “incoherent”. Scalia follows up:
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 — no, Your Honor, I’m not saying that –
JUSTICE SCALIA: Sounded like what you were saying.
That’s pretty pointed. That also indicates that the argument isn’t resonating with the court. Hinderaker summarizes the argument that Verrilli is being forced to defend:
Of course, what is going on here is that the Obama administration doesn’t want to enforce the immigration laws that Congress has enacted. The essence of its position in the Arizona case is that the federal government has the right to decide not to enforce the law, and if it so decides, then no state has the power, under the Constitution, to do anything that would tend to enforce those federal laws. So if the Obama administration decides that it will gain political advantage by ignoring federal laws against illegal immigration, states like Arizona just have to take the consequences without complaining.
That understanding is what is driving questions like those from Scalia and Kennedy. It is indeed an indefensible position, especially in a nation that claims to be a nation of laws, not men.
How indefensible? Even Justice Sotomayor isn’t buying:
JUSTICE SOTOMAYOR: Can I get to a different question? I think even I or someone else cut you off when you said there were three reasons why — 2(B). Putting aside your argument that this — that a systematic cooperation is wrong — you can see it’s not selling very well — why don’t you try to come up with something else? Because I, frankly — as the chief has said to you, it’s not that it’s forcing you to change your enforcement priorities. You don’t have to take the person into custody. So what’s left of your argument?
Of course this sets up the inevitable “shock” on the left. I’m sure they thought that, as in the case of ObamaCare, their arguments were Constitutionally ironclad.
While Verrilli may not be the smoothest SG we’ve ever had, he’s been consistently thrust before the court with abysmal arguments in which he is forced to defend laws or actions which are at best questionably constitutional. At best.
When even a Obama appointed justice isn’t buying the administration’s argument, well, it must be a pretty lousy argument. And, of course, claiming the right not to enforce the law and then claiming Constitutional cover to force states to have to live with the results of the federal government’s decision not to enforce the laws of the land is a pretty lousy argument.
But that’s what he’s stuck with.
Obviously none of this means the court will end up finding for Arizona. But, as Lyle Denniston at SCOTUS blog points out, indications seem to point to some interest in the court in doing so:
In an oral argument that ran 20 minutes beyond the scheduled hour, the Justices focused tightly on the actual operation of the four specific provisions of the law at issue, and most of the Court seemed prepared to accept that Arizona police would act in measured ways as they arrest and detain individuals they think might be in the U.S. illegally. And most of the Justices seemed somewhat skeptical that the federal government would have to change its own immigration priorities just because states were becoming more active.
At the end of the argument in Arizona v. United States (11-182), though, the question remained how a final opinion might be written to enlarge states’ power to deal with some 12 million foreign nationals without basing that authority upon the Scalia view that states have a free hand under the Constitution to craft their own immigration policies. The other Justices who spoke up obviously did not want to turn states entirely loose in this field. So perhaps not all of the four clauses would survive — especially vulnerable may be sections that created new state crimes as a way to enforce federal immigration restrictions.
As should be clear, there seems to be an interest in accommodating portions of the Arizona law that the court feels are “reasonable”. That is contrary to what the left assured us would be the courts position on Arizona’s “draconian” immigration law.
In fact, should the court find for Arizona in some of the key provisions, I’m sure we’ll hear the left’s usual defense – judicial activism.
The irony, of course, is that the Obama economy has been the best means of reversing the tide of illegal immigration. According to reports we now have net illegal emigration taking place.
That seems like the perfect point to settle this. The federal government, under the Constitution, has a legal obligation to enforce the laws passed by Congress. It hasn’t been doing that. And that’s the real point here. It will be interesting to see how the court handles that particular point. Meanwhile, it appears that key portions of the AZ bill may survive.