April 26, 2012 6:48AM

Justice Sotomayor: “[Mr. Solicitor] General, I’m Terribly Confused by Your Answer”

Yesterday's argument in Arizona v. United States (my preview here), which in a non-Obamacare world would be the case of the decade, revealed among other things yet another bizarre legal position taken by the Obama Justice Department.  That is, the solicitor general stood there and straight-facedly made the claims that: (1) local law enforcement could make "ad hoc" judgments to apprehend illegal aliens but state governments (the bosses of said local officials) could not "systematize" such policies by legislation; and (2) state laws like Arizona's were unconstitutional because they interfere with federal policy decisions on how to allocate enforcement resources.

It was the first point that caused Justice Sotomayor's (understandable) confusion.

Solicitor General Verrilli apparently resolved that confusion in an unsatisfactory manner, because Sotomayor later asked him for other arguments because "you can see [that this one is] not selling very well."

The second point was met with similar skepticism by the Court, with Justice Alito asking whether, if "the federal government changed its [enforcement] priorities tomorrow . . . .  Would the Arizona law be un-preempted?"

These colloquies don't necessarily mean that the DOJ is headed towards a precipitous defeat -- here's a transcript and summary of the whole argument so you can judge for yourself -- but it does show how far off the reservation this administration goes to assert political stances (and controversial ones at that) in place of sound legal reasoning.

Most visibly in the health care case, where it failed even to articulate a plausible limiting principle to its Commerce Clause power, but generally across wide swaths of law, the government has advanced arguments that can most charitably be described as a stretch (and uncharitably as disingenuous and dangerous).  For example, see the Supreme Court's unanimous rulings against the government regarding property rights/EPA abuses, GPS surveillance, and religious libertyAnd that's just this term! 

If there's anything systematic here, it's the DOJ's imaginative interpretation of individual rights and government powers.

As to how this particular case will end up, it's actually a hard one to predict because the issues are so technical -- much more so than Obamacare, which involves competing legal philosophies rather than methods of statutory interpretation -- but I'm sticking with my earlier analysis that three of the four SB 1070 provisions at issue are not preempted (that is, the Court will reverse the Ninth Circuit, in Arizona's favor):

    • Section 2(B), which requires police to check the immigration status of anyone they have lawfully detained whom they have reasonable suspicion to believe may be in the country illegally;


      • Section 3, which makes it a state crime to violate federal alien registration laws (though this one could really go either way); and


        • Section 6, which permits permitting warrantless arrests where the police have probable cause to believe that a suspect has committed a crime that makes him subject to deportation.


        And one provision looks to be in trouble:

          • Section 5(C)(1), which makes it a state crime for illegal aliens to apply for work, solicit work in a public place, or work as an independent contractor.


          I could be wrong on one or more of these, but in any event it will likely be a split decision -- which still means that almost all of Arizona's law will be in effect because the government didn't challenge most of it and declined to appeal the district court's ruling allowing two other provisions to stand: Section 5(C), which criminalizes the transportation and harboring of illegal aliens; and Section 10, which permits the impoundment of vehicles used to transport or harbor them. (Note that the district court in a different case enjoined Sections 5(A) and (B), which criminalize stopping to pick up day laborers when it impedes traffic -- on First Amendment grounds(!), so stay tuned to see what happens there.)

          Finally, remember that racial profiling is not at issue here at all, as Chief Justice Roberts had the solicitor general re-confirm at the start of his presentation.  SB 1070 bends over backwards to make clear that it does not allow (let alone require) any use of race not permitted under federal law -- which is why the federal government declined to join the (dismissed/stalled) lawsuits brought by various so-called civil rights groups.

          It would be better if the federal government enacted comprehensive national immigration reform, or at least allowed greater state experimentation in this area.  For more on these sorts of positive proposals, tune into (or attend!) Cato's conference today.