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On April 25, 2012, the U.S. Supreme Court heard oral argument in Arizona v. United States, involving the constitutionality of the State’s effort to combat illegal immigration. In one sense, it was a rematch between former Solicitor General Paul Clement, arguing for Arizona, and the current Solicitor General, Donald Verrilli, contending for the United States. The two had squared off just a month before in United States v. Florida, the battle royale over the constitutionality of the ObamaCare mandate requiring everyone to purchase health care insurance prescribed by the federal government.

In each case, the justices, by their questions and comments, appeared to disfavor the Obama administration’s position. In the ObamaCare case, several justices expressed concern that, if the individual mandate were to be found constitutional, it would dismantle the federal system, rendering the Tenth Amendment reservation of powers to the States and the people a dead letter. Now, in the Arizona immigration case, several justices expressed concern that the Obama Administration’s claim of “exclusive power” to regulate immigration would have a similar impact on the independence and sovereignty of the 50 states.

The issue arose early in the oral argument, even before the solicitor general could make his claim of exclusivity. Justice Scalia kicked off, asking Mr. Clement whether he would concede “that the State has to accept within its borders all people who have no right to be there, that the Federal Government has no interest in removing … and the State has no power to close its borders to people who have no right to be there.” Remarkably, Mr. Clement did not answer the justice’s inquiry with a firm no, prompting Justice Kennedy to inquire: “Can we say, or do you take the position that a State must accept within its borders a person who is illegally present under Federal law?” This time Mr. Clement answered: “I think my answer to that is no.” But he did not back up his answer with either reason or conviction, resting Arizona’s case on the sole ground that the state has the constitutional right to help the federal government to enforce federal law.

In contrast, General Verrilli boldly rejected Mr. Clement’s basic argument that the Arizona immigration law was nothing more than the state “aid to Federal immigration enforcement,” when as a matter of fact, “Arizona is pursuing its own policy of attrition through enforcement and that the provisions of this law are designed to work together to drive unlawfully present aliens out of the State. That is something Arizona cannot do because the Constitution vests exclusive –”

Before General Verrilli could finish his sentence, Justice Sotomayor asked him to “answer Justice Scalia’s earlier question…whether it would be the Government’s position that Arizona doesn’t have the power to exclude or remove … from its borders a person who’s here illegally.” Given the opportunity to finish his sentence, General Verrilli stated: “It is our position [that] the Constitution vests exclusive authority over immigration matters with the national government.”

In response, Justice Scalia jumped back into the fray, noting, first, that the constitutional grant of exclusive authority is over “naturalization which we’ve expanded to immigration”:
But all that means is that the Government can set forth the rules concerning who belongs in this country. But if, in fact, somebody who does not belong in this country is in Arizona, Arizona has no power? What does sovereignty mean if it does not include the ability to defend your borders?

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