He's not having a good 2012.
After getting pounded by the court in the health care litigation arguments (see here and here), he had to turn around less than a month later and argue that Arizona's immigration law, SB 1070, had been preempted by federal immigraton law. The case, Arizona v U.S., featured another legal beat-down and, unlike the health care cases, the liberal wing of the court didn't exactly leap to his defense. To top it off, his Arizona opponent was the same person he had faced in the health care cases - the great Paul Clement.
Here's the background on the Arizona case.
Arizona's Border Problems
Arizona has a 370-mile border with Mexico. One-third of all immigration-related arrests take place in Arizona. Between 2006 and 2010, 51 drug-smuggling tunnels were discovered in the border town of Nogales, Arizona. Phoenix has experienced numerous home invasions and hundreds of reported kidnappings, all linked to the drug trade and human smuggling. As far as 80 miles from the border and within 30 miles of Phoenix, the federal government has put up road signs warning the public:
Danger -- Public Warning -- Travel Not Recommended" -- "Active Drug and Human Smuggling Area" -- "Visitors May Encounter Armed Criminals and Smuggling Vehicles Traveling at High Rates of Speed"Arizona spends hundreds of millions of dollars each year incarcerating criminal aliens and providing education and health care to aliens unlawfully present in the state.
The list goes on and on. You get the idea -- unlawful immigration is an enormous problem in Arizona.
To address the problem, Arizona passed SB 1070. The Supreme Court argument focused primarily on sections 2, 3, and 5.
Section 2 says that for any lawful stop, detention, or arrest by Arizona law enforcement, "where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person." The law further provides that the person's "immigration status shall be verified with the Federal government[.]"
Section 3 provides for state enforcement of the federal laws requiring persons to carry alien registration documents. This section expressly does not apply to persons authorized to be in the U.S.
Section 5 makes it a misdemeanor for "a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in [Arizona]."
So, if you get stopped or arrested in Arizona and the police have a reasonable suspicion that you are in the U.S. illegally, they have to verify your immigration status with the federal government.
The Court Challenge and Preemption.
The U.S. sued Arizona, and ultimately, the Ninth Circuit (of course!) held that the Arizona law was preempted by federal law and, therefore, invalid and unenforceable.
The doctrine of preemption is founded on the U.S. Constitution's Supremacy Clause, Article VI, Clause 2, which states:
This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.Over the years, the cases interpreting the Supremacy Clause have described three types of preemption -- express preemption, field preemption, and implied preemption. The first occurs when federal law expressly preempts state law; the second when federal law "occupies the field" to the exclusion of a state law. Neither of these are applicable in this case. Therefore, the question before the Supreme Court was whether federal law impliedly preempted state law.
Supreme Court decisions have made it clear that a law is not preempted unless there is clear evidence that Congress intended preemption. A state law is not preempted merely because the executive branch claims the law is inconsistent with its enforcement priorities.
Verrilli at the Podium
In the Supreme Court, Paul Clement did his usual sterling job as attorney for Arizona, attacking the Ninth Circuit's decision and defending the Arizona law.
Then, it was Verrilli's turn.
Before Verrilli spoke even one complete sentence, the Chief Justice interrupted him:
Before you get into what the case is about, I'd like to clear up at the outset what it's not about. No part of your argument has to do with racial or ethnic profiling, does it? I saw none of that in your brief.To which Verrilli responded, "That's correct." But, a few moments later, Verrilli seemed to backtrack:
Now, we are not making an allegation of racial profiling. Nevertheless, there are already tens of thousands of stops that result in inquiries in Arizona, even in the absence of S.B. 1070. . . . And given that you have a population in Arizona of 2 million Latinos, of whom only 400,000 at most are there unlawfully --
JUSTICE SCALIA: Sounds like racial profiling to me.Later, Verrilli argued that "under the Constitution, it's the President and the Executive Branch that are responsible for the enforcement of Federal law[.]" This argument proved to be a little too much for Chief Justice Roberts, who responded:
It is not an effort to enforce Federal law. It is an effort to let you know about violations of Federal law. Whether or not you enforce them is still entirely up to you. . . .Under 2(B), the person is already stopped for some other reason. . . . So that decision to stop the individual has nothing to do with immigration law at all. All that has to do with immigration law is the -- whether or not they can ask the Federal Government to find out if this person is illegal or not, and then leave it up to you. It seems to me that the Federal Government just doesn't want to know who's here illegally or not.Justice Alito joined in, focused on Verrilli's argument that the Arizona law interfered with federal immigration law enforcement priorities:
How can a State officer who stops somebody or who arrests somebody for a nonimmigration offense tell whether that person falls within the Federal removal priorities without making an inquiry to the Federal Government?Verrilli responded:
[T]here's a difference, Justice Alito, I think, between the question of any individual circumstance and a mandatory policy backed by this civil fine, that you've got to make the inquiry in every case.In other words, Arizona police officers can contact the Federal government for immigration information voluntarily, but Arizona cannot tell them to do so.
At this point, even Justice Breyer was confused:
Look, in the Federal statute, it says in 1373 that nobody can prohibit or restrict any government entity from making this inquiry of the Federal Government. And then it says that the Federal Government has -- any agency -- and then it says the Federal Government has an obligation to respond. . . .If that were the situation, and we said it had to be the situation, then what in the Federal statute would that conflict with, where we have two provisions that say any policeman can call? . . .Because in my mind, I'm not clear what your answer is to that.Verrilli stumbled around for a few seconds until he heard the lilting voice of Justice Sotomayor. Surely, this would be a lifeline, right?
JUSTICE SOTOMAYOR: Can I get to a different question? . . . 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?That was a good question. Apparently, what was left of Verrilli's argument was the notion that foreign policy requires the Court to invalidate the Arizona law. Verrilli argued:
And so -- so you're going to have a situation of mass incarceration of people who are unlawfully present. That is going to raise -- poses a very serious risk of raising significant foreign relations problems. And those problems are real, That is the problem of reciprocal treatment of United States citizens in other countries.
JUSTICE KENNEDY: So you're saying the government has a legitimate interest in not enforcing its laws?Shortly thereafter, Justice Scalia took up this issue:
JUSTICE SCALIA: Well, can't you avoid that particular foreign relations problem by simply deporting these people? Look, free them from the jails. . . and send them back to the countries that are objecting. . . . What's the problem with that?
GENERAL VERRILLI: * * * Between 60 and 70 percent of the people that we remove every year, we remove to Mexico. And in addition, we have to have the cooperation of the Mexicans. And I think as the Court knows from other cases, the cooperation of the country to whom we are -- to which we are removing people who are unlawfully present is vital to be able to make removal work. In addition, we have very significant issues on the border with Mexico. And in fact, they're the very issues that Arizona's complaining about in that --
JUSTICE SCALIA: So we have to -- we have to enforce our laws in a manner that will please Mexico. Is that what you're saying?
GENERAL VERRILLI: No, Your Honor, but what it does -- no, Your Honor, I'm not saying that --
JUSTICE SCALIA: It sounded like what you were saying.
Mercifully, Verrilli's time ran out shortly after that exchange. That brought Paul Clement back up for rebuttal, which gave him the opportunity to add the human touch to his brilliant constitutional analysis:
[L]ook at the declaration of Officer Brent Glidewell[.] He pulled somebody over in a routine traffic stop and was shot by the individual. Now, the individual it turns out was wanted for attempted murder in El Salvador and was also guilty of illegal entry into the United States. He was stopped on three previous occasions, and his status was not verified. Now, if it had been, he certainly would have been apprehended. In at least two of the stops, his immigration status wasn't checked because of a city policy, City of Phoenix.In the movie Animal House, Kevin Bacon is initiated into a fraternity by being ruthlessly paddled. After each whack, he shows he can take it by saying, "Thank you, sir, may I have another?"
Don Verrilli can relate to Bacon's character. The Obama administration hands him lousy case after lousy case, he goes up the Supreme Court and takes his lumps, then has to go back to his office and wait for the next loser.
Verrilli is an excellent lawyer (you don't get to be Solicitor General unless you 've got something on the ball) and the Court respects him. It would be nice if his boss respected him enough not to keep sending him to the Supreme Court armed with the sort of arguments we've seen in the last couple months.