Commentary Magazine


Topic: Supreme Court of the United States

Arizona Immigration Law: Verrilli Strikes Out Again With SCOTUS

Solicitor General Donald B. Verrilli Jr. may have been outclassed when he went up against Paul D. Clement arguing the case to uphold the constitutionality of ObamaCare before the Supreme Court of the United States. But today, when the pair once again matched up in the same forum when the high court met to hear arguments about the state of Arizona’s controversial immigration law, it appears that the result was no different. As the New York Times reports, even the liberal justices inclined to be on the same side of the administration, which wants the law struck down, gave the impression that they thought the solicitor general was something of a flop.

While Verrilli’s second humiliation — even Justice Sonia Sotomayor was so unimpressed with his presentation that she felt the need to tell him,  “You can see it’s not selling very well” — was noteworthy, even more important was the fact that it appeared that the key provision of the Arizona law would not only be upheld but that most of the justices — even the liberals — seemed to agree that there was nothing unreasonable about it. Given the opprobrium that the mainstream media has heaped on Arizona and the way that most of the chattering classes had spoken of the law and its supporters as racists, the reaction of the court must be a shock to the administration and to its liberal supporters.

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Solicitor General Donald B. Verrilli Jr. may have been outclassed when he went up against Paul D. Clement arguing the case to uphold the constitutionality of ObamaCare before the Supreme Court of the United States. But today, when the pair once again matched up in the same forum when the high court met to hear arguments about the state of Arizona’s controversial immigration law, it appears that the result was no different. As the New York Times reports, even the liberal justices inclined to be on the same side of the administration, which wants the law struck down, gave the impression that they thought the solicitor general was something of a flop.

While Verrilli’s second humiliation — even Justice Sonia Sotomayor was so unimpressed with his presentation that she felt the need to tell him,  “You can see it’s not selling very well” — was noteworthy, even more important was the fact that it appeared that the key provision of the Arizona law would not only be upheld but that most of the justices — even the liberals — seemed to agree that there was nothing unreasonable about it. Given the opprobrium that the mainstream media has heaped on Arizona and the way that most of the chattering classes had spoken of the law and its supporters as racists, the reaction of the court must be a shock to the administration and to its liberal supporters.

At the heart of the debate is the question of whether Arizona was within its rights when it mandated that law enforcement officials must seek to determine the immigration status of anyone they stop if there is reason to believe the individual is not legally in this country. Though other parts of the law — including provisions that treat illegals working or to failing to register with federal authorities as crimes — might not be upheld, the inability of Verrilli to assert that inquiring about the immigration status of a person already detained was a form of racial profiling was a glaring weakness in the government’s case.

Though the Arizona law was condemned by the president and overruled by a federal appeals court, the justices seemed to agree that states were entitled to pass laws that require local officials to make mandatory inquiries to federal authorities. Moreover, it is clear that such provisions are actually quite common. All of which means the effort to demonize the Arizonans and their effort to, as Clement put it, deal with a crisis not of their own making, was deeply unfair.

What’s more, the arguments also seemed to bring out the strange inconsistency in the administration’s case. While claiming only the federal government had the right to pass laws that deal with immigration, they seemed to extend that unexceptionable principle to demanding that local authorities ignore the situation entirely. As Chief Justice John Roberts said, “It seems to me that the federal government just doesn’t want to know who is here illegally or not.” Even as hardcore a liberal as Justice Stephen Breyer said he would vote in favor of the constitutionality of this point in the law so long as it was proven that the process of checking immigration status would not result in “detention for a significantly longer time” than might happen in any other circumstance.

One needn’t necessarily agree with those who promulgated the law about the impact of illegals to understand that there is nothing wrong with the state trying to determine if someone already in custody is an undocumented alien. If the court rules (as seems likely) to uphold the provision — and does so with a comfortable majority that includes liberals as well as conservatives — then President Obama and a long list of other liberals who have vilified Arizona will owe the state, its governor, legislature and citizens a big apology.

As for Solicitor General Verrilli, he may have made himself the poster child for the Obama administration’s utter incompetence. As the Times notes:

At one point Justice Sotomayor, addressing Mr. Verrilli by his title, said: “General, I’m terribly confused by your answer. O.K.? And I don’t know that you’re focusing in on what I believe my colleagues are trying to get to.”

President Obama’s positions on his health care law and the Arizona immigration law were weak to start with. But with a champion as hapless as Verrilli, the government’s already weak position was made even more vulnerable.

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