As the saying goes, “Don’t count your chickens before they hatch.” It also ain’t over until the ladies and gentlemen who wear the black robes render their decision (expected in June). But from the tenor of the oral arguments and the questions posed by the eight U.S. Supreme Court justices at today’s hearing (Elena Kagan recused herself due to her previous tenure as Solicitor General), there is reason to be optimistic that the Court will side with Arizona on key provisions of its immigration enforcement law, SB 1070.
This morning’s oral arguments indicate that the justices were skeptical about the Obama Administration’s arguments for seeking to enjoin key provisions of SB 1070. Even Justice Sonia Sotomayor, who was appointed to the high court by President Obama, stated that the Administration’s arguments pertain to status verification checks were “not selling well.”
In particular, the Justices expressed skepticism about the Obama Administration’s contention that its enforcement priorities (or lack thereof) preempt SB 1070. Justice Antonin Scalia asked U.S. Solicitor General Donald Verrilli, who was arguing the case for the Administration, whether he knew of any cases in which the basis of preemption is the “Attorney General’s enforcement discretion,” calling such “an extraordinary basis for saying that the state is preempted.” This is because the standard for preemption has always been based on congressional intent—not the whim of whichever President currently resides in the White House.
Justice Scalia also dismissed Solicitor General Verrilli’s argument that federal law preempts SB 1070 because it would interfere with the national government’s ability to forge and maintain relationships with other countries. In response to this argument, Justice Scalia incredulously asked him, “So we have to enforce our laws in a manner that will please Mexico?”
Finally, the Justices questioned the Administration’s desire to enforce U.S. immigration law. Mid-hearing, Chief Justice John Roberts hit the nail on the head when he made the following comment to Solicitor General Verrilli, “It seems to me that the federal government just doesn’t want to know who is here illegally or not.”
Based on what we saw and read about today’s Supreme Court hearing, we have strong reason to be optimistic about the forthcoming ruling…but, of course, it ain’t over until the eight men and women in black robes begin writing.