The Supreme Court will hear oral arguments on Arizona's controversial immigration law today, from the same two lawyers who led the fight over the Affordable Care Act last month. In the last argument of the term, U.S. Solicitor General Donald Verrilli will take the government's side while the state has hired — who else? — the Supreme Court's designated arguer Paul Clement. This is will be the fourth time these two lawyers have squared off in front of the highest court in the land and so far Verilli is 2-0, with the one decision still pending. There was even a fifth case when they fought on the same side. (They won, naturally.)
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One key difference between today's hearing and last month's three-day marathon (besides the length) is that Justice Elena Kagan will not sit in on the arguments. Because she was working in the Solicitor General's office when the case first came up, she has recused herself. That means the potential for 4-4 tie among the remaining justices and a tie goes to the previous ruling. The Ninth Circuit Court of Appeals already ruled the Arizona law unconstitutional, so without a clear 5-3 win to overturn it, that decision will stand.
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Though the Arizona law — which empowers local enforcement to stop, detain, search, or arrest anyone they suspect may be in the country illegally — is problematic on many levels, the issue before the Court is not about the fairness of how the state treats immigrants, both legal and illegal. The question is whether Arizona can even have a law that is potentially in conflict with federal policy. The Obama administration claims that the immigration bill (S.B. 1070) violates the rule of preemption, which says that whenever there's a conflict between federal and state law, federal law wins. Immigration enforcement (specifically, the decision to deport an illegal alien) belongs to the feds and local police can't take it upon themselves to decide who needs to go. They also can't be penalizing people for violating federal laws without knowing if the federal government even wants those people penalized.
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Several lower court judges have already agreed that many of the key provisions of S.B. 1070 don't hold up to constitutional scrutiny, leaving Arizona with a pretty big hill to climb. Of course, if anyone can do it it's Clement, who appeared to get the better of Verrilli during the health care arguments and moved what many experts believed to a slam dunk case in favor of Obamacare solidly back into the "tossup" camp. No lawyer currently practicing has had more experience or more success in front of the Supreme Court and without the shrewd and knowledgeable Kagan there to grill him, he certainly has a chance at the upset.
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However, since part of the bill's purpose was simply to goad the Obama administration into action, win or lose, Arizona's point might have already been made. It's also a point that holds a lot less sway than it did when the law was passed just two years ago. (It became law two years ago this week, actually.) With some states already seeing the negative effects of similar immigration crackdowns and new numbers suggesting the problem it was trying to solve is overblown, the political will that brought it to life is already waning. There's also the matter of winning over Latino voters this November, which is of particular importance to both side of the Washington dividing law. Anything can happen, but it seems likely that S.B. 1070 will die a quiet death later this summer when the ruling comes down.