It makes some sense in a term with various big cases that the USSC would end its oral argument calender with the infamous (in some quarters) "papers please" law, though apparently the justices think that specific part of the law is rather unproblematic. Scotusblog (analysis/media round-up) etc. suggests the federal government did not do well.
Listening to the argument, this might be right to some degree, though the implication it is the fault of the SG is a tad off. Some analysis (e.g., here and other posts at that blog) provides a somewhat more nuanced picture. Likewise, we have more "Grandpa" Scalia moments where he sounds like he belongs on Fox and Friends or something. As suggested here, you again get an unfortunate feeling at times that the justices, or at least some of them (Kagan, btw, was recused, so four justices will be a win for the feds on the issues they won on below; they are not attacking all parts of the law) simply aren't completely aware of just what is at stake.
From at least the late 19th Century, scholars suggest before (though the feds, like in other matters of commerce, also simply didn't get much involved beforehand), it was recognized that immigration was a national concern, one in which the feds can "take over the field." (See, e.g., the Head Money Cases) Basically, besides matters of naturalization and border control, it is basically a matter of international commerce. Scalia at one point flagged a provision in Art. I, sec. 10 that when "absolutely necessary" (he skipped over that) for inspection laws, states could on its own lay duties on goods. The need to single that out underlines the broad power of the federal government as a whole here.
The Obama Administration cites federal law that gives the feds the discretion in this area and argues the specific provisions in question unconstitutionally clash with supreme federal law. The first part of the argument from Paul Clement focused on the Fourth Amendment issues though this is supposed to be a pre-emption case. There is some overlap, since it underlines the affect of the state law, but it was a bit curious. Clement's overall point is that the state can help the federal government in enforcing its law and in no way is this law clashing with said law.
His old friend from the PPACA orals had to spend much of his time trying to explain how the "papers please" aspect of the law is not trivial. Roberts' very first question basically took what bothers so many people off the table -- this isn't about racial and ethnic profiling, right?! Verilli said yes, but this is all so artificial; even he raised concerns of "harassment," which Scalia thought was a sneaky way the get the profiling issue back in. The overall concern here (see New Republic link) is you have all of these people and it makes little sense to take a one trick pony approach given the matter of resources, liberty concerns and geopolitical matters. Scalia: "we have to enforce our laws in a manner that will please Mexico?!” Ah, the model Republican justice.
So, yeah, contra a few justices sarcastic (Scalia, Roberts, Kennedy) or confused (Sotomayor/Breyer) comments, the feds do not want some zero tolerance policy here and the state's overall approach must be examined. The state's policy therefore is problematic and just looking at one section in a vacuum (section 2) in some artificial "let's pretend" way is wrong. One ACS Blog entry cited above -- other than noting that there is more to come here -- summarized things nicely:
Alito wondered why making it a policy is a problem if police could ask on their own. Well, a mandatory policy does change things, but the problem becomes clearer (shades of PPACA, perhaps, on the tax issue), if we look at the law as a whole. The average person is aware of this, but we are dealing with "artificial reason" (Coke) here. There are other issues here, but I advisedly focus on this stuff -- Verilli in effect only managed to address the other three (and not much to my ear) by being given more time. Clement dealt with them too but again there was an also-ran feel. There is some discussion here with more of the "may rarely exist in the real world" feel of the attempt to salvage a statute somehow by watering down what it exactly does. I'm for the "reality based community."
We shall see how it all works out, probably sometime in June. Meanwhile, the USSC press corps had their own "papers please" incident.
Listening to the argument, this might be right to some degree, though the implication it is the fault of the SG is a tad off. Some analysis (e.g., here and other posts at that blog) provides a somewhat more nuanced picture. Likewise, we have more "Grandpa" Scalia moments where he sounds like he belongs on Fox and Friends or something. As suggested here, you again get an unfortunate feeling at times that the justices, or at least some of them (Kagan, btw, was recused, so four justices will be a win for the feds on the issues they won on below; they are not attacking all parts of the law) simply aren't completely aware of just what is at stake.
From at least the late 19th Century, scholars suggest before (though the feds, like in other matters of commerce, also simply didn't get much involved beforehand), it was recognized that immigration was a national concern, one in which the feds can "take over the field." (See, e.g., the Head Money Cases) Basically, besides matters of naturalization and border control, it is basically a matter of international commerce. Scalia at one point flagged a provision in Art. I, sec. 10 that when "absolutely necessary" (he skipped over that) for inspection laws, states could on its own lay duties on goods. The need to single that out underlines the broad power of the federal government as a whole here.
The Obama Administration cites federal law that gives the feds the discretion in this area and argues the specific provisions in question unconstitutionally clash with supreme federal law. The first part of the argument from Paul Clement focused on the Fourth Amendment issues though this is supposed to be a pre-emption case. There is some overlap, since it underlines the affect of the state law, but it was a bit curious. Clement's overall point is that the state can help the federal government in enforcing its law and in no way is this law clashing with said law.
His old friend from the PPACA orals had to spend much of his time trying to explain how the "papers please" aspect of the law is not trivial. Roberts' very first question basically took what bothers so many people off the table -- this isn't about racial and ethnic profiling, right?! Verilli said yes, but this is all so artificial; even he raised concerns of "harassment," which Scalia thought was a sneaky way the get the profiling issue back in. The overall concern here (see New Republic link) is you have all of these people and it makes little sense to take a one trick pony approach given the matter of resources, liberty concerns and geopolitical matters. Scalia: "we have to enforce our laws in a manner that will please Mexico?!” Ah, the model Republican justice.
So, yeah, contra a few justices sarcastic (Scalia, Roberts, Kennedy) or confused (Sotomayor/Breyer) comments, the feds do not want some zero tolerance policy here and the state's overall approach must be examined. The state's policy therefore is problematic and just looking at one section in a vacuum (section 2) in some artificial "let's pretend" way is wrong. One ACS Blog entry cited above -- other than noting that there is more to come here -- summarized things nicely:
First, while much of the argument revolved around Section 2(B), the “show me your papers” provision of S.B. 1070, the discussion seemed to imagine a law quite different from the one the state legislature actually passed. S.B. 1070 itself directs state and local police to detain individuals for investigation and determination of their immigration status, but during the argument, several exchanges construed the section as merely serving to notify the federal government of an individual who was otherwise properly detained. Prognostication around the argument fails to factor in this significant retreat from the plain language of the statute.And, a previous case underlined federal control of this area in part is a matter of avoiding such harassment, a more cosmopolitan national government with special concerns and motivations deemed different here than a locality. But, USSC minimalism allows us to set up some sort of Potemkin Village provision here. I realize this is a "facial challenge," but the rule there is not that if there is maybe some conceivable application that the law suddenly becomes acceptable, though the rules are cloudy enough that can be true in some cases. A separate case can be raised on the racial profiling point, but the USSC has been fairly unsympathetic in dealing with what amounts to pre-textual stops.
Second, this has always been a case about discrimination, harassment and racial profiling. It is true that there is no separate legal claim based on the Equal Protection Clause in the federal government’s case (although there is one in the civil rights coalition’s case). But it is equally true that from its inception, S.B. 1070 has been synonymous with racial profiling, and for good reason – as law enforcement officials from around the country have repeatedly confirmed, and as our clients’ experiences demonstrate.
Alito wondered why making it a policy is a problem if police could ask on their own. Well, a mandatory policy does change things, but the problem becomes clearer (shades of PPACA, perhaps, on the tax issue), if we look at the law as a whole. The average person is aware of this, but we are dealing with "artificial reason" (Coke) here. There are other issues here, but I advisedly focus on this stuff -- Verilli in effect only managed to address the other three (and not much to my ear) by being given more time. Clement dealt with them too but again there was an also-ran feel. There is some discussion here with more of the "may rarely exist in the real world" feel of the attempt to salvage a statute somehow by watering down what it exactly does. I'm for the "reality based community."
We shall see how it all works out, probably sometime in June. Meanwhile, the USSC press corps had their own "papers please" incident.