POLITICS APRIL 26, 2012
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At the conclusion of yesterday’s oral arguments in Arizona v. U.S., the case that will decide the fate of Arizona law SB 1070, Chief Justice John Roberts said, “Thank you, Mr. Clement, General Verrilli. Well argued on both sides.” The tip of the hat to the Solicitor General and his conservative opponent, Paul Clement, seemed designed to reassure Verrilli that he had redeemed himself after his much-criticized previous appearance with Clement in the health care arguments last month.
In fact, however, as he did in the health care case, Verrilli again failed to make the most convincing constitutional argument in support of his position. The argument that the government should have offered in the immigration case closely resembles the one it failed to offer in the health care case. In the immigration case, the argument goes something like this: The Framers of the Constitution intended to transfer power over foreign relations from the individual states to the federal government. The federal government uses its immigration powers—including the power to welcome, expel, detain, and place conditions on aliens—as an instrument of foreign policy. State laws like Arizona’s SB 1070 undermine the uniformity of federal foreign relations policy and can harm relations with foreign countries by inviting retaliation against U.S. citizens abroad.
This is not a particularly novel argument. It appears in briefs filed by the Constitutional Accountability Center and by former Solicitor General Seth Waxman on behalf of former officials at the departments of State and Defense, as well as in a brief filed by former Democratic members of Congress. In a new book, Living Originalism, Jack Balkin provides further background on why the Framers would have intended to prevent states like Arizona from interfering with federal immigration policy. Balkin notes that the Commerce Clause of Article I, Section 8 of the Constitution, which provides that “Congress shall have the power … [to] regulate Commerce with foreign Nations, and among the several States,” was originally understood “to give Congress power to legislate in all cases where states are separate incompetent or where the interests of the nation might be undermined by unilateral or conflicting state action.” In the area of immigration, this means that Congress needs exclusive authority to control America’s borders as part of its power to regulate commerce—which was originally understood as a synonym for “interactions”—with foreign nations.
Perhaps because of an aversion to making textual and historical arguments about the Constitution, Verrilli avoided this argument in his brief, just as he had avoided it in his brief in the health care case. If Verrilli had emphasized the need for uniform federal control over foreign policy, he could have pointed to the many ways that the Arizona law, SB 1070, has harmed America’s foreign relations, including antagonizing foreign governments, exposing U.S. citizens to retaliation, and making it harder for the U.S. to negotiate in international bodies. At the oral arguments, in response to questions from Justice Scalia and other conservative justices, Verrilli did suggest that federal officials should consider geopolitical considerations in deciding whom to deport. But if he had linked his arguments more closely to the expectations of the Framers, he might have had a better chance of convincing Scalia and his colleagues.
Indeed, what makes Verrilli’s failure to emphasize this argument—that the Framers intended Congress to regulate in cases where the states can’t agree—all the more bewildering is that the conservative justices might have been receptive to it. In other cases, Roberts has repeatedly ruled for national uniformity rather than states’ rights, embracing a broad rather than a narrow view of the federal government’s ability to “preempt,” or displace, inconsistent state laws. In 2010, Roberts joined a 5-4 opinion by Justice Scalia holding that California’s policy of disfavoring contracts that require arbitration as a way of settling lawsuits was preempted by the Federal Arbitration Act, which viewed arbitration more favorably. And in a dramatic 5-4 decision from 2008, Wyeth v. Levine, Roberts joined the conservatives in dissenting from the Court’s holding that federal food and drug law doesn’t preempt the multi-million-dollar jury verdict awarded to a guitar playing woman whose arm was amputated after a nurse improperly injected an anti-nausea drug that caused gangrene.
Of course, in each of those cases, Roberts and other conservatives were favoring the interests of big business. On matters relating to immigration, by contrast, they have been far less sympathetic to arguments about federal uniformity. In yesterday’s oral argument, Roberts expressed skepticism that the Arizona law was “preempted” by the need for national uniformity in federal immigration enforcement policy. And in a 5-3 opinion last year, Roberts held that an Arizona law suspending the licenses of businesses that hire illegal aliens wasn’t preempted by the federal Immigration Reform and Control Act, which prohibits states from imposing civil or criminal sanctions on business that hire illegal aliens. If Roberts votes to uphold the Arizona law in the name of states’ rights, it will be hard to avoid the conclusion that he favors states’ rights when the interests of anti-immigrant police officers, but not businesses interests, are concerned.
Regardless of how the Court rules on immigration, liberals don’t have to apologize for urging the Court to strike down the Arizona law and to uphold the health care mandate. In both cases, the Framers of the Constitution feared that inconsistent state policies would make it impossible to enact a national solution to a national problem. If the Obama administration had offered a clear argument about the importance of federal uniformity in both cases, based in constitutional text and history, it might have challenged the conservative justices to be similarly consistent.
Jeffrey Rosen is the legal affairs editor of The New Republic.
23 comments
It's not Sunday morning yet, but we definitely have a case of Sunday morning quarter-legal backing here at the TNR. I am not an attorney (obviously); only attorneys (perhaps only judges) should be allowed to comment on this post from here on. Except Arnon; he usually has something interesting and intelligent to say, except when ... well, I am giving him a chance to redeem himself after the Putin fiasco. Don't blow it.
- skahn
April 26, 2012 at 12:10am
Strategy in court is like strategy in battle: you have to know your enemy. Here's my guess about Verrilli's strategy (and it's only a guess, for if Verrilli hasn't revealed his strategy to Rosen, he most definitely hasn't revealed it to me). Verrilli's argument was not directed to the Court as a whole, but to the swing Justices he believed most sympathetic to his case, and he crafted an argument that he believed would be most persuasive to the swing Justices, given their predilections as revealed in their prior opinions on the topic (immigration). The "exclusive authority" argument Rosen finds so appealing may well have been offensive to those Justices, as their prior opinions may reveal a more nuanced, or flexible, standard with respect to state authority in matters relating to immigration. Whatever one chooses for a strategy, a strategy offensive to the presiding judges is most definitely not recommended as a winning strategy. That's my guesss. Of course, it could be, as Rosen seems to imply in this and in his prior post about the mandate, that Verrilli is an idiot, and got his job as SG for reasons other than merit.
- rayward
April 26, 2012 at 7:36am
It is a shame that the Mexican government did not close their border crossings from Mexico into Arizona in retaliation, I realize that this would have hurt many Mexican border towns along that area but having lived in Mexico I know it would have had widespread support and it would have put the Conservatives in a hell of a spot. To be honest, I simply can not believe any sane person could state that Arizona's blatantly racist laws should be legal. It is now legal to rape a latina provided she is an illegal because she could not report the crime to the police because they are now obligated to inquire as to her status, if she lies she ruins her credibility (and will still be deported) if she tells the truth, she will be deported. This is precisely why we have ICE so policemen can protect victims of crimes and not act as ICE agents. Is this the type of society Republicans want? Oh, right, I forgot, non white people, especially if they are undocumented, are simply not people to them.
- blackton
April 26, 2012 at 9:25am
But Congress does have exclusive authority over immigration if it wants to use it. All it has to do is pass a Schumer-like bill prohibiting the states from legislating in that area. If it does not do so, that should not be the states' problem.
- JohnEMack
April 26, 2012 at 10:34am
What else is new?? BHO and his minions do not make a consistent or convincing argument for a Progressive policy position on.... take your pick. Is it ineptitude or non-belief in the policy?? After the nth example, who cares?
- drofnats1
April 26, 2012 at 10:54am
This sentence from the article is hard to parse: Balkin notes that the Commerce Clause of Article I, Section 8 of the Constitution, which provides that “Congress shall have the power … [to] regulate Commerce with foreign Nations, and among the several States,” was originally understood “to give Congress power to legislate in all cases where states are separate incompetent or where the interests of the nation might be undermined by unilateral or conflicting state action.” I don't understand what "separate incompetent" is supposed to mean here. Does TNR have editors?
- jaltcoh.blogspot.com
April 26, 2012 at 11:28am
If the Obama administration had offered a clear argument about the importance of federal uniformity in both cases, based in constitutional text and history, it might have challenged the conservative justices to be similarly consistent. I don't think so, but I might be mistaken. If the consistency has not previously been there, as Rosen points out in the case of Roberts, why should it be there now? Especially with Alito and Scalia, who may be even more hard core "conservative" (and I use the term loosely) than Roberts. The arguments Rosen makes are valid; have they not occurred to any of the justices on the conservative side, especially the ones who claim the mantle "Originalists"? This is nauseating beyond belief. I'm tired of these so-called Originalists reading the Constitution selectively to suit their warped personal and political beliefs. Although I accept it, because human beings will often succumb to their personal prejudices and foibles, I don't have to like it. When you reach the level of the High Court, should you not try to rise above it, occasionally? Alito, Scalia, and Thomas are beyond redemption. What about Roberts? This is why I go ballistic what anyone says to me that Presidential elections are not important...
- sbmacdon@cox.net-old
April 26, 2012 at 12:45pm
"BHO and his minions do not make a consistent or convincing argument for a Progressive policy position on.... " The Supreme Court is about winning the legal and constitutional argument for the legitimacy of the ACA, not about defending a particular policy as good or bad. In fact, the Court should not be concerning itself with policy as such.
- ironyroad
April 26, 2012 at 2:45pm
blackton writes: "To be honest, I simply can not believe any sane person could state that Arizona's blatantly racist laws should be legal." Blatantly racist? Mexicans are generally the same race as Americans. Pick another word. The issue is simply a matter of whether or not a state has the right to enforce immigration or if that is solely the role of the federal government. Pretty cut and dried. If states do have that right, then you can bet they'll check immigration status as a matter of routine procedure. There's nothing at all wrong with that. The government claimed they'd be doing it, but they are stretched too thin. Roberts asked specifically if this was bout racial or ethnic profiling. "NO" was the response from Verrilli.
- seattleeng
April 26, 2012 at 2:58pm
seattle: Mexicans are generally the same race as Americans. Pick another word. You have officially gone loco. Americans are not a race. Caucasian is a race, Asian is a race, America is a country. And damn right most Mexicans are of mixed ancestry, however to a large extent they are mostly native American, ergo non white, ergo easily identifiable as such, especially when they are of the most native American variety. This is flat out the job of the Federal Government, you want to greatly expand the scope of ICE, that is perfectly fine by me. It is not a Cops job to check the citizenship status of anyone. It is their job to preserve the peace and they can not do that if they are at war with the Hispanic community. I would hate to be brown and be in Arizona. The whites are a bunch of racist crackers.
- blackton
April 27, 2012 at 9:52am
blackton writes: "You have officially gone loco. Americans are not a race. Caucasian is a race, Asian is a race, America is a country. And damn right most Mexicans are of mixed ancestry, however to a large extent they are mostly native American, ergo non white, ergo easily identifiable as such, especially when they are of the most native American variety. I didn't say "American" was a race. I said Mexicans and Americans (countries) share the same race (Caucasian, predominately). Native American is not a race. It is an ethnicity of Caucasian.
- seattleeng
April 27, 2012 at 10:32am
blackton writes: " It is not a Cops job to check the citizenship status of anyone. It is their job to preserve the peace and they can not do that if they are at war with the Hispanic community." Given our modern computer systems, when a person is stopped and their drivers license or state ID number is entered, is it reasonable for the state police to check to see if the person is wanted on issues outside that state? Sure. Is it reasonable for the state to see if the person is a citizen? We learned this only takes 10 seconds. Why is it not reasonable to make this check? What if this check is an automatic check of EVERYONE that is stopped? Are you OK with it then? If someone is here illegally, when should we learn this? And if we learn it, what should be done about it? Can we learn it if they are sitting in their house watching TV? Eating ice cream in the mall? If they have hit their wife? If they have a DUI? If they have killed someone? If they have killed 1000 people? When, precisely, would you be OK about law enforcement learning about their illegal status? Sounds like you want law enforcement to NEVER learn about their immigration status.
- seattleeng
April 27, 2012 at 10:37am
Seattle... You have yet to answer my previous question to you with regards to Arizona passing blatantly bigoted laws that specifically target a particular ethnic group. How do you defend such laws as not being prescriptively "racist"* when they are targeting individuals and groups that have Hispanic heritage - specifically anyone from Mexico/Central & South America speaking Spanish? How is Tuscon's banning of Latino Studies only while leaving similar ethnic studies courses for Asians, blacks, and American Indians intact, not "racist"? The Arizona immigration law has nothing to do with curtailing illegal immigration amongst all ethnic groups. It specifically targets the largest minority group in Arizona. Why not question every black or Asian or white person for that matter? If one is to argue about enforcing "papers please" laws then we should simply dispense with the double talk and institute a national ID card that defacto requires one to have proof of citizenship or the proper papers. No other form of ID is acceptable. Would you be for that? And I've yet to see why such states like Georgia or Utah are passing similar bills to Az other than to push out a specific ethnic group some down here in south refer to as a "Mexican problem." _____ * Racism Is any action or attitude, conscious or unconscious, that subordinates an individual or group based on skin colour or race. It can be enacted individually or institutionally. Source: US Civil Rights Commission
- singlspeed
April 27, 2012 at 12:16pm
Single brain cell writes: "The Arizona immigration law has nothing to do with curtailing illegal immigration amongst all ethnic groups. It specifically targets the largest minority group in Arizona. Why not question every black or Asian or white person for that matter?" ... hmmm, lets see, not many black / Asian / White people in Arizona are citizens of Mexico illegally residing in the US. I love the liberal mind, can't make this stuff up -- LMFAO
- mr_rationale
April 27, 2012 at 12:26pm
Laws have unintended consequences. http://www.npr.org/blogs/thetwo-way/2011/11/22/142658357/ala-immigration-law-back-in-spotlight-after-mercedes-benz-exec-is-arrested http://www.guardian.co.uk/world/2011/dec/02/alabama-car-boss-immigration-law This is what you get when Deputy Sheriff Jim Bob Cracker gets outside of his limited skill set.
- zardoz67
April 27, 2012 at 12:57pm
seattle: "If someone is here illegally, when should we learn this?" Ideally, citizens of other countries should not be in the US without appropriate documentation. In reality, however, millions of people are (or were, at least) and the massive majority of them are not involved in criminal activity. It is a matter of political choice if we want the police to be acting as immigration control authorities as well as going about the daily business of law enforcement. A question worth asking is whether law enforcement is helped or hindered by having a part of the community that does not want to interact with the police because they are afraid of the immigration status check. Police and sheriff's departments have often replied 'hindered!' My personal feeling is that if the matter at hand has nothing to do with immigration (the undocumented immigrant is a witness to a serious crime, for example) then immigration status should not get in the way of police work.
- ironyroad
April 27, 2012 at 1:22pm
mr_rat man says "not many black / Asian / White people in Arizona are citizens of Mexico illegally residing in the US. I love the liberal mind, can't make this stuff up" What exactly is your point other than clearly showing your true colors again. The only thing you comment leads us to conclude is that you don't even bother refuting the fact that the Arizona "immigration" law is pointedly racist in it's intent. So when we here Conservatives whine about being called out as racist and then claim they're not being racists, well I can just ROTFLMAO at that the absurdity of the Conservative mind.
- singlspeed
April 27, 2012 at 2:32pm
Single Brain Cell -- I may have overestimated your intelligence The issue is basic logic. Lets try some examples that even an idiot can understand: - If you are trying to stop male pedophiles in academia, you will not investigate any females - If you are trying to crack down on home office tax deduction fraud, you will not investigate taxpayers who do not claim the home office deduction - If you are trying to stop smoking and alcohol abuse in pregnant women, you will not target men. If you are targeting illegal immigrant from Mexico, you will not target individuals who have a 0.000001% chance of being an illegal immigrant. to be this stupid and unaware you must be in the public sector. What do you do?
- mr_rationale
April 27, 2012 at 2:58pm
Earth to liberals -- even the Obama appointee doesn't buy the WH BS... ***** News reports have focused on an exchange in which Justice Sotomayor, an Obama appointee, spoke for the Court in expressing open skepticism about Verrilli’s argument: 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? Justice Sotomayor was commenting here on an extraordinary aspect of the Obama administration’s position, to the effect that it is OK if individual Arizona law enforcement officers decide to cooperate with federal immigration authorities, but if the state directs them all to cooperate, it is somehow unconstitutional. The Obama administration literally argued that for a state to engage in “systematic cooperation” with the federal government on immigration is unlawful. We can’t blame Mr. Verrilli for his inability to sell that bizarre argument. We do blame Barack Obama and Eric Holder for trying to assert it.
- mr_rationale
April 27, 2012 at 2:59pm
rat-man are you trying to be obtuse or does it come naturally? My position is that the Az law be applied to everyone. You say "If you are targeting illegal immigrant from Mexico, you will not target individuals who have a 0.000001% chance of being an illegal immigrant" The law as amended HB 2162 specifically "modified the Act that had been signed a week earlier, with the amended text stating that "prosecutors would not investigate complaints based on race, color or national origin." The new text also states that police may only investigate immigration status incident to a "lawful stop, detention, or arrest", lowers the original fine from a minimum of $500 to a maximum of $100, and changes incarceration limits for first-time offenders from 6 months to 20 days." Effectively, you're saying you have no issues with applying a law that was amended so that it can be applied as a "racially neutral" immigration enforcement to only those you consider to be Mexican is targeting a specific population. That's fine, then you won't have an issue understanding why that would be construed as "racially motivated". Maybe if Arizonians would simple just come out say that they're trying to get rid of all the illegal Mexicans, it would be one thing, but to couch a racially motivated law as "immigration enforcement" is whitewashing at best. Like I said before, if conservative moon-bats are going to claim they're not being prejudicial with laws like AZ SB 1070 and just want tougher illegal immigration enforcement, then be consistent and apply it across the board. To Everyone. I have no issues with that at all. Police should simply ask "papers please" of everyone they pull over for speeding or other issues. Just because you're white doesn't mean you should get a free pass on being required to provide your citizenship papers. Maybe we can weed out those pale-faced, blonde hair, blue eyed, Brazilians I've seen running around.
- singlspeed
April 27, 2012 at 3:54pm
Less than single brain cell:; It is not racist if, when trying to stop illegal immigration from Mexico, you focus your 'reasonable suspicion' on those people most likely to be illegal immigrants from Mexico. Just like it is not racist if, when trying to catch a killer identified as white or hispanic, or black respectively, the police only question those who fit the description. You do know that when the police pull you over they do ask for 'papers please', in the form of a drivers license or other Gov ID. To meet the AZ requirement, you just need a valid Gov ID. How crazily racist is that - to insist you carry a valid Gov ID. By the way it is wing-nut, not moon-bat
- mr_rationale
April 27, 2012 at 4:56pm
seattle: their drivers license or state ID number is entered, is it reasonable for the state police to check to see if the person is wanted on issues outside that state? Sure. um...and just how is an illegal alien supposed to get a drivers license? There is your main fallacy. If you have a license you are legal by definition (unless you have stolen an identity by using someone's documentation, but that is a different issue and far harder to ascertain by a simple license check) The problem is that in Arizona if you are walking down the street and are hispanic any cop can make up a pretext to demand your papers (you jaywalked, you threw litter, etc.) and if you are legal but don't have any documents you might find yourself in jail. And Mr. Rat welcomes America to become like Nazi Germany (provided whites are never burdened) because he can not grasp that yes, indeed there are many illegals from Europe, like Irish, Poles, Russians, etc. I have had friends come over on tourist visas, get jobs, overstay their visas, and go home and have no problems at all. But Herr Rat simply can not grasp reality. Hey Rat, when I go for a walk on the bike path I don't take my effing passport with me, or even my wallet. Why the hell should I? Why don't you move to Russia, you would be happy there.
- blackton
April 27, 2012 at 9:37pm
It is my understanding that, as blackton points out, there are at least hundreds of thousands of "illegal aliens" in the United States from European countries. My observation is that they tend to occupy janitorial occupations, whereas "illegal aliens" from Mexico and other Latin American countries tend to occupy agricultural and landscaping occupations. While it may be true that a high percentage of undocumented workers in Arizona come from Mexico, a law that targets “illegal” immigrants from Mexico (and not “illegal” immigrants from other countries) is inherently discriminatory. If that is what Arizona is doing, it reinforces the sense that many of us have that the law is motivated at least in large part by a bias against persons of Mexican origin. As to profiling people who appear to be of Mexican origin, it is probably true, at least in Arizona, that a person who appears to be of Mexican origin is more likely than a person who does not appear to be of Mexican origin to be undocumented. But that doesn’t mean a person who appears to be of Mexican origin is LIKELY to be undocumented. Undocumented workers constitute only a small percentage of Hispanic workers in Arizona. So the question is whether having an Hispanic appearance is by itself sufficient to constitute “reasonable suspicion” that a person is undocumented. As a practical matter, it seems inevitable that law enforcement officers will treat it as such. That in turn is likely to cause Hispanic persons who are citizens or legal residents to be unjustifiably harassed and perhaps detained or jailed if they don't happen to have appropriate identification on their person. Mr. Rationale says: “- If you are trying to stop male pedophiles in academia, you will not investigate any females” True, but you also will not investigate all males or investigate people solely because they are males. “- If you are trying to crack down on home office tax deduction fraud, you will not investigate taxpayers who do not claim the home office deduction” True, but you also will not investigate all persons who claim the deduction, or investigate people solely because they claimed the deduction. - If you are trying to stop smoking and alcohol abuse in pregnant women, you will not target men. True, but you would not target all pregnant women, or target a woman solely because she was pregnant, other than to provide adequate information and advice. We wouldn’t approach those issues which such a broad brush because it would not survive a cost/benefit analysis. But I think we also sense that it would be unfair and discriminatory. Dhurtado
- NR143296
April 28, 2012 at 11:23am