Poor Don Verrilli, or, "Thank you, sir, may I have another?"

Donald Verrilli, Jr. is the Solicitor General of the United States.  He argues the federal government's position in the most important cases that reach the U.S. Supreme Court.

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.

SB 1070

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?

Not exactly.

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.

Understanding the Health Care Litigation, Part Three

First, the gloating.

Yesterday, I wrote:  "Commerce doesn't exist to be regulated until people engage in commerce. The ACA forces people to engage in commerce, then regulates them."

Today at the Supreme Court, Justice Kennedy asked the Solicitor General: "Can you create commerce order to regulate it?"

Now, I'm not saying that Justice Kennedy checks out the Wizard of Laws before important arguments, but is it more than a coincidence that his first question to the Solicitor General echoed the Wiz?  Just sayin'.

Now, to business.

Today's Arguments

Not a good day for the Obama administration or its Solicitor General, Donald Verrilli.  He was questioned relentlessly by the Justices -- especially Kennedy, Alito, and Scalia -- on the implications of the administration position that the individual mandate was founded on the Commerce Clause.

Here are three beautiful statements by Justice Scalia:

The argument here is that this also is -- may be necessary, but it's not proper, because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it's supposed to be a government of limited powers. And that's what all this questioning has been about. What -- what is left? If the government can do this, what -- what else can it not do?

          and

An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the States and do not belong to the Federal Government.

          and

I mean, the Tenth Amendment says the powers not given to the Federal Government are reserved, not just to the States, but to the States and the people. And the argument here is that the people were left to decide whether they want to buy insurance or not.

Verrilli had a difficult time, but as flustered as he got, Paul Clement, arguing for the 26 states challenging Obamacare, was that composed and cool under fire.  Here's an example from an exchange between Clement and Justice Breyer, who, as part of a question that ran two pages in the transcript, inquired whether Congress had the power to create commerce, based on the fact that Congress created a national bank, which was approved by the Supreme Court in the 1819 McCulloch v Maryland decision.  Clement replied coolly:

MR. CLEMENT: Well, Justice Breyer, let me start at the beginning of your question with McCulloch.  McCulloch was not a commerce power case.

JUSTICE BREYER: It was both?  

MR. CLEMENT: No, the bank was not justified and the corporation was not justified as an exercise of commerce power. So that is not a case that says that it's okay to conjure up the bank as an exercise of the commerce power.

That's pretty much the way the day went -- Verrilli struggling and Clement in command.  As most appellate lawyers will tell you, it's risky to predict outcomes based on questions during oral argument, but it's difficult to see this as anything other than a good day for Obamacare opponents.

Wednesday's Arguments on Severability and Medicaid

Read about severability here.  If the lower court decisions on severability were laid end to end, they would point in all directions.  Still, it's hard to imagine that this bill would have passed without the individual mandate, so if the mandate is declared unconstitutional, there is no logical reason the rest of the bill should survive.

The other issue is Obamacare's Medicaid expansion.  As described by the 26 states challenging the law:

Title II of the ACA expands the Medicaid program in multiple respects and transforms it from a cooperative program addressed to specific categories of the most needy into a mandatory program designed to fulfill the individual mandate for the entire non-elderly population with income below 138% of the federal poverty line. Whereas States traditionally were required to offer Medicaid only to those low-income individuals who fell within certain “categorically needy” groups (families with dependent children, elderly, blind, disabled, children, and pregnant women), and retained significant flexibility to determine whether and to what extent to cover other low-income individuals, the Act requires States to cover all individuals under age 65 with incomes up to 133% of the poverty level, with a 5% “income disregard” provision that effectively raises that threshold to 138%.

Congress could not require the states to implement and expand these programs through direct legislation, however, so it is attempting to accomplish it through the "spending power."  Congress has conditioned the receipt of all federal monies on state compliance with the new Medicaid provisions, thus effectively coercing state compliance by a kind of blackmail.  As the 26 states put it:

The ACA threatens States with the loss of every penny of federal funding under the single largest grant-in-aid program in existence—literally billions of dollars each year—if they do not capitulate to Congress’ steep new demands. There is no plausible argument that a State could afford to turn down such a massive federal inducement, particularly when doing so would mean assuming the full burden of covering its neediest residents’ medical costs, even as billions of federal tax dollars extracted from the State’s residents would continue to fill federal coffers to fund Medicaid in the other 49 States.

Ultimately, I think the Court may end up not deciding the Medicaid question at all.  If the Court finds the individual mandate unconstitutional and determines that it is not severable, the entire act, including the Medicaid provisions, crumbles.  At that point, the Medicaid issue is moot and can be reserved for another day.

Another fascinatiing day coming up on Wednesday, with severability being the big issue of the day.