No, Obama doesn't need a new lawyer, but the conservative-minded Court seems more likely to side with Arizona.
Does Obama need a new lawyer, someone asked me Wednesday following oral argument in the Arizona immigration case, or is he throwing the games deliberately? The answer is no and no.
Sure he might have been better, and smarter in his choice of emphasis, but U.S. Solicitor General Donald Verrilli isn't to blame for the tepid reception his constitutional arguments have received lately -- last month in the Affordable Care Act case and this week in Arizona v. United States. Whatever the merits of his case(s), the fact is that he's been playing to a historically tough crowd of justices, as conservative a group as we've seen in 75 years; an audience, for example, which rushed into this immigration case before it had to so it could express its support for states' rights.
Indeed, reading through the transcript of Wednesday's oral argument is like sifting through the debris of an ambush. The Court's majority clearly isn't feeling deferential toward the federal government's immigration policies. Some of the justices' disdain for executive branch priorities practically dripped from their words. "It seems to me that the Federal Government just doesn't want to know who is here illegally or not," Chief Justice Roberts said to the Solicitor General. "So you're saying the government has a legitimate interest in not enforcing its laws?" Justice Anthony Kennedy asked a few minutes later.
This is a court that is going to figure out a way to constitutionally allow Arizona to keep part of its law. Here are five quick takeaways:
1. Killing the law to save it. If you believe some of the questions Wednesday from the justices, and some of the answers by Paul Clement, Arizona's lawyer, then you might think that Section 2 of SB 1070 -- the so-called "Show Me Your Papers" provision -- is a mere love tap from Arizona to Washington. Indeed, at times during the argument, Clement and the justices seemed to be racing to assure one another of the fiction that the Arizona law doesn't do much of anything at all except give state officials more responsibility to arrest and detained suspected illegal immigrants. Here's a representative exchange:
JUSTICE BREYER: All right. Can I make the following statement in the opinion, and you will say that's okay. Imagine -- this is imaginary. "We interpret" -- imagine -- "we interpret Section 2(B) as not authorizing or requiring the detention of any individual under 2(B), either at the stop or in prison, for a significantly longer period of time than that person would have been detained in the absence of 2(B)." Can I make that statement in an opinion, and you'll say, that's right?
MR. CLEMENT: I think what you could say
JUSTICE BREYER: Can I say that?
MR. CLEMENT: I don't think you can say just that.
JUSTICE BREYER: No.
MR. CLEMENT: I think you can say something similar, though. I think you probably could say, look, this is a facial challenge. The statute's never gone into effect. We don't anticipate that Section 2(B) would elongate in a significant number of cases the detention or the arrest. I think you could say that.
And then this:
JUSTICE SOTOMAYOR: I want to make sure that I get a clear representation from you. If on a call to the Federal agency, the agency says, we don't want to detain this alien, that alien will be released or -- unless it's under [Section] 6, is what you are telling me. Or under 6, 3, or some -- one other of Arizona's immigration clauses.
MR. CLEMENT: Exactly.
And just one more:
CHIEF JUSTICE ROBERTS (to Clement): Well, but you say that the Federal Government has to have control over who to prosecute, but I don't see how Section 2(B) says anything about that at all. All it does is notify the Federal Government, here's someone who is here illegally, here's someone who is removable. The discretion to prosecute the Federal immigration offense rests entirely with the Attorney General.
2. And the decision is... Here's how the Court is going to justify upholding one or more of these provisions. The law may be an annoyance, the majority ruling will read in some fashion, but it's a minor one and doesn't really do much more to the federal government than shame it into doing more of what Arizona wants it do so (and what we think it ought to be doing) in the first place. Or, as Justice Stephen Breyer put it:
JUSTICE BREYER (to Verrilli): Suppose that we were to say, that sentence [of Section 2] does not raise a constitutional problem as long as it is interpreted to mean that the policeman, irrespective of what answer he gets from ICE, cannot detain the person for longer than he would have done in the absence of this provision.
3. The needs of the many... Amazing, isn't it, that a state law directly targeted at a particular group of people, and one which would have a dramatic impact upon a large and distinct group of American citizens, would generate a Court argument so devoid of any conversation about the impact of the legislation upon the people who would fall into its reach? Yes, I know that Wednesday's argument was all about state versus federal power (see No. 5 below for the reason why) but it's still odd. Here's Justice Antonin Scalia pushing Verrilli:
JUSTICE SCALIA: Are you objecting to harassing -- the people who have no business being here? Is that -- surely you're not concerned about harassing them. They have been stopped anyway, and all you're doing is calling up to see if they are illegal immigrants or not. So you must be talking about other people who have nothing to do with our immigration laws. Okay? Citizens and -- and other people, right?
The Solicitor General tried to answer -- it wasn't a particularly good one -- but he was quickly cut off by Justice Breyer, who inquired into something else. Not that it would be likely to make a difference in the outcome of the case, but here Verrilli should have accepted Justice Scalia's invitation to talk about how Arizona's law might necessarily infringe upon the rights and privileges of American citizens. Even if the justices ignored it, in fact, it's a quote that would have been widely cited by the media covering the argument. And on Wednesday, after the argument, the Obama Administration seemed like it could have used that quote.
4. Invasion! Under-reported this week is the fact that Arizona's immigration offensive against the federal government involves more than just SB 1070. Last year, for example, in response to the Justice Department's challenge to the 2010 statute, Gov. Jan Brewer and Arizona Attorney General Tom Horne counter-sued the feds for money damages, claiming that the United States had failed to protect the state from foreign invasion. Did someone say "invasion"? Justice Scalia is on the case. "What does sovereignty mean," he asked Solicitor General Donald Verrilli, "if it does not include the ability to defend your borders?"
5. What the future holds. As noted above, the challenge here is a "facial" one -- meaning that the Justice Department has argued that Arizona's immigration law could not be constitutional in any set of factual circumstances. So even if the Court were to uphold the statute now it would not preclude people (or groups) from suing Arizona in the future by claiming that the law as applied to them is unconstitutional. This means civil rights lawsuit upon civil rights lawsuit, for years or perhaps decades to come, a whole new branch of the equal protection litigation tree. This is what Arizona asked for. And soon, it seems, this is what Arizona is going to get.