- The Washington Times
Wednesday, April 25, 2012

The Supreme Court took a dim view of the Obama administration’s effort to halt Arizona’s immigration-crackdown law, with the justices signaling an inclination during oral arguments Wednesday to approve requiring police to check the status of those suspected of being in the U.S. illegally.

At stake is not only Arizona’s law but those in a handful of other states that followed Arizona’s lead over the past two years — all of which have been put at least partly on hold as challenges wind their way through the federal courts.

While the justices seemed inclined to let the police immigration checks stand — as long as they don’t substantially increase the amount of time citizens and legal immigrants are detained — the fate of the other contentious provisions was less clear.

At root, the battle came down to whether Arizona is trying to help or hinder the federal government’s immigration policy.

“The framers vested in the national government the authority over immigration because they understood that the way this nation treats citizens of other countries is a vital aspect of our foreign relations,” Solicitor General Donald B. Verrilli Jr., the government’s top constitutional lawyer, told the court.

But several justices said when it came to the immigration checks, it appeared Arizona was only trying to help.

“It seems to me the federal government just doesn’t want to know who’s here illegally,” Chief Justice John G. Roberts Jr. said at one point.

Federal law already lets local police call and check immigration status — and in some instances even requires it for prisons and jails. Mr. Verrilli said immigration-status checks are fine as long as police perform them voluntarily, but he said Arizona crossed a line by making it mandatory.

The justices on both sides of the court’s ideological divide didn’t buy that.

“You can see it’s not selling very well — why don’t you try to come up with something else?” said Justice Sonia Sotomayor, appointed by President Obama.

In addition to the immigration checks, the Arizona law — known as S.B. 1070 — had three other provisions blocked by lower courts: giving police the power to arrest anyone they think committed a crime that would get them deported, making it a state crime for an illegal immigrant to apply for a job, and requiring legal immigrants to carry their papers with them at all times.

The Obama administration was on its firmest ground when it argued that Arizona went too far in making it illegal for an illegal immigrant to apply for a job.

Federal law chiefly targets employers, not employees, and Mr. Verrilli said adding stiffer penalties at the state level is not coordination. He said Congress’ 1986 immigration law laying out legal penalties was meant to be a comprehensive scheme, and Congress left employees untouched.

Justice Sotomayor seemed to agree.

“It seems odd to think the federal government is deciding on employer sanctions and has unconsciously decided not to punish employees,” she told Paul D. Clement, who argued the case on behalf of Arizona.

A decision is expected before the end of the court’s term in June.

Just eight justices were present for the arguments. Justice Elena Kagan recused herself from the case, presumably because she was the Obama administration’s solicitor general in 2010, when the law was being debated in Arizona.

In one pointed exchange, Justice Antonin Scalia said Arizona’s law doesn’t target anyone the federal government hasn’t already decided shouldn’t be in the U.S.

He said the administration is trying to force Arizona to heel to the administration’s own priorities — in which Mr. Obama has called for deporting some categories of illegal immigrants while leaving others untouched — rather than to what U.S. law actually says.

He repeatedly peppered Mr. Verrilli with questions about whether there was another example where the courts had deferred to an administration’s priorities rather than the law.

“I think that’s an extraordinary basis for saying that the state is pre-empted,” Justice Scalia said. “It’s not criminalizing anything that isn’t criminal under federal law.”

Mr. Verrilli struggled to come up with an answer but said the state’s intent behind the law was the problem.

“The point of this provision is to drive unlawfully present people out of the state of Arizona,” he said.

On that he got no argument from Cochise County Sheriff Larry A. Dever, whose jurisdiction includes 83 miles of U.S.-Mexico border. Speaking to The Washington Times after attending the oral arguments, Sheriff Dever said the reason illegal immigration is swamping Arizona now is because federal government policies pushed it away from California and Texas and into his state in the 1990s.

He said S.B. 1070 doesn’t have a major impact on his county — the county is close enough to the border that it already can turn over illegal immigrants to the U.S. Border Patrol for removal — but he said counties farther north will clamp down, which should relieve the flow of people crossing through his county.

“It was moved elsewhere, from San Diego and El Paso, into southern Arizona. The reason it moves elsewhere is because it can,” he said. “That’s our whole argument. We want the federal government to take up the cause and have the resources it needs to keep it from moving from one place to another.”

Sheriff Dever said Homeland Security officials invite state and local police cooperation in every area of anti-terrorism enforcement except immigration law.

“Why is that?” he asked, adding that the same smugglers who guide people across the border also traffic in drugs and could potentially aid terrorists.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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