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
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.