April 30 (Bloomberg) -- One’s heart really has to go out to Solicitor General Donald Verrilli.
Last month, in one of the most high-profile cases heard by the U.S. Supreme Court in decades, the litigation position of his client -- the U.S. government under the administration of President Barack Obama -- forced Verrilli to argue on one day that the penalty imposed by the individual mandate provisions of the Affordable Care Act was not a tax that would deprive the court of jurisdiction under the Anti-Injunction Act, but argue the very next day that it was a tax for the purposes of determining Congress’s constitutional authority to adopt the act.
The administration’s position also led him to argue on Day 2 that the individual mandate was a core part of the act, but on Day 3 that, if unconstitutional, the individual mandate could be severed from the rest of the statute because it was not a core part of the act.
Then, last week, Verrilli’s client’s position compelled him to argue that the Obama administration’s unwritten policy of non-enforcement of federal immigration law prevented the states from helping to enforce those very same laws, because of the Supremacy Clause, which makes the Constitution and laws of the U.S. (not the policy preferences of a particular executive) the supreme law of the land.
Even Justice Sonia Sotomayor, widely presumed to be an opponent of Arizona’s S.B. 1070 immigration law, had to tell the solicitor general that his argument was “not selling very well.”
Politics, Not Law
The Justice Department’s litigation position was always based much more on politics than law. Attorney General Eric Holder claimed shortly after Arizona adopted S.B. 1070 that the law would lead to racial profiling, though he later had to admit he had not even read the law before leveling that charge.
Verrilli had to disavow that claim in response to the very first question, before he could even begin his argument. Predictably, the department’s other arguments also withered under the scrutiny of the intense questioning by the justices on the highest court in the land. Verrilli had to admit, for example, that even before the Arizona law was passed, Arizona law enforcement could question the legal immigration status of people whom they lawfully stopped, if they had probable cause to believe that the individual was present in this country illegally. He could not identify a single example where federal law enforcement discretion (as opposed to federal laws themselves) had been held to pre-empt state law.
In one of the most damning statements of the day, Chief Justice John Roberts stated, after listening to Verrilli’s argument, that “It seems to me that the federal government just doesn’t want to know who is here illegally or not.”
Justice Anthony Kennedy then weighed in with this: “So you’re saying the government has a legitimate interest in not enforcing its laws?”
And in response to the solicitor general’s argument that the president had diplomatic reasons for his non-enforcement policies, Justice Antonin Scalia chided the solicitor general with this: “So we have to enforce our laws in a manner that will please Mexico. Is that what you’re saying?”
Those statements, and many others like them, by a solid majority of the court do not bode well for the government’s position that the “ask when stopped” provisions of Arizona’s law are pre-empted by federal executive enforcement policy.
In fact, the government’s argument that it had to set enforcement priorities because of limited resources was flatly inconsistent with Arizona’s attempts to provide a force multiplier for enforcement of existing federal immigration law. The court seemed well inclined to uphold these provisions of the Arizona law, the ones that have generated the most controversy.
Employee Sanctions Questioned
The provision of the Arizona law allowing the state to prosecute illegal immigrants who unlawfully seek employment (rather than just the employers, as federal law provides) is on less certain ground. The justices appeared to be leaning toward accepting the federal government’s argument that when it imposed sanctions only on employers of illegal immigrants rather than the employees themselves, Congress implicitly intended to leave the illegal-immigrant employees alone. This prevented the states from imposing their own sanctions on the employees under what is known as “field pre-emption.”
If that is the only provision that does not survive the Supreme Court’s ruling, expected in late June, most of the Arizona law, including the most significant and high-profile provisions, will go back into effect as early as July. The other states that have adopted similar immigration-enforcement laws while this litigation has been pending will likewise be able to start enforcing their laws. And we can probably expect to see several other states weigh in with new laws of their own, once the Supreme Court gives them the green light.
This will be a good experiment in an “enforcement first” strategy, while the administration and Congress continue to debate, ad nauseam, a comprehensive immigration reform.
(John C. Eastman is the Henry Salvatori professor of law and community service and former dean at Chapman University School of Law in Orange, California. He filed a brief in support of Arizona, on behalf of the Center for Constitutional Jurisprudence and several members of Congress, in the Arizona v. United States case. The opinions expressed are his own.)
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