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Oral Argument Blues

So you've got your first oral argument coming up in the court of appeals, and you ask the more seasoned heads in your office what to expect.  It takes a lot of planning, they tell you.  You've got to figure out what points you want to argue -- you've only got 15 minutes, after all -- and what the strengths and weaknesses of your argument are.  You've got to anticipate what questions the panel might ask, and how to deflect the tough ones and steer the judges back to the points you want to hammer home.  Just like in trial, planning and preparation is the key.

Here are my two favorite quotes about planning.  The first is by von Moltke, the Prussian general:  "No plan of battle survives contact with the enemy."

The second is by that noted philosopher, Mike Tyson:  "Everyone has a plan until they get punched in the face." 

I'm thinking that Donald Verrilli probably appreciates the Tyson quote more.

A month ago, Verrilli, the new U.S. Solicitor General, was tasked with defending the Obama health care reform before the Supreme Court.  Although most experts, even conservative ones, had predicted the Court would have little trouble affirming the law, it took a battering during six hours of oral argument, and if the Court strikes it down, there'll be a lot of people looking to have Verrilli wear the jacket for that:  his performance was widely derided, with a number of pundits helpfully describing the arguments that he could have made

So Tuesday, Verrilli ventured out again, this time to argue the administration's position on Arizona's new law designed to crack down on illegal immigration.  And what happened this time?  Halfway through his presentation, he had to listen to the justice most likely to support his position -- Hispanic and liberal Justice Sotomayor -- tell him:  "You can see that [your argument] isn't selling very well.  Why don't you try to come up with something else?"

Ouch.

Although most of the public debate over the Arizona law since its passage two years ago has focused on the likelihood that it would lead to profiling -- in scenes unsettlingly reminiscent of non-democratic societies, police would routinely stop Hispanics or people who looked "foreign," and demand to see their papers -- the argument at this stage was focused on only four provisions of the law:  Section 2(B), which requires police to check the immigration statuts of anyone they arrest, and to stop anyone they believe is in the country illegally; Section 3, which makes it a crime to be in the state without valid immigration papers; Section 5(C), which makes it a crime to apply for a job in the state without proper papers; and Section 6, which allows a police officer to arrest someone if the officer believes that person has committed a crime that could result in deportation, regardless of where the crime occurred.

The backdrop to the argument is the long-running debate over what we should do about illegal immigration, and more precisely what the Federal government has or has not done to resolve the problem.  That was the key argument pressed by the state:  because the Feds have so inconsistently and inadequately enforced its immigration laws, Arizona has been compelled to take its own steps to combat the massive influx of illegal immigrants that has resulted in an increased crime rates, tax expenditures for social services, and reduced wages.

That argument has to be viewed within the legal confines.  There are things that states are not allowed to do by the Constitution.  They can't set up a post office, issue copyrights and patents, or declare war on foreign countries; all those powers are reserved to the Feds.

One of the other powers reserved to Congress is "to establish an uniform Rule of Naturalization," and this is where the argument over the Arizona law begins.  One might argue that this gives Congress the absolute power over anything concerning immigration and naturalization -- that's what's called "express pre-emption" (copyrights would be an example of this) -- but the Court's never gone that far.  That leaves "implied pre-emption":  either the state law conflicts with Federal law, or the Federal law is so pervasive that it doesn't leave room for state regulation.  The latter argument isn't going anywhere, either; just four years ago, the Court upheld an Arizona law which suspended or revoked the licenses of businesses employing illegal aliens, despite a Federal law making it illegal for employers to do so.

So that left conflict resolution, and that got into the state's second argument:  it was merely trying to be a more effective junior partner with the Federal government in the enforcement of immigration laws.  Verrilli ran into trouble even with the liberals on that:  Sotomayor's comment came after Verrilli had argued that the provision requiring police officers to contact Customs to see if an arrestee was in the country illegally would have put a strain of Federal resources, envisioning the agency being swamped by calls.  Couldn't they just not answer the phone, one of the justices inquired?

Scalia offered the broadest defense of the Arizona law, contending that it is constitutionally permissible for a state to completely close its borders to immigrants without the necessary authorization to be in the United States, and it's likely that Thomas, who remained customarily mute during the argument, would agree.  None of the other justices appeared willing to go that far, but it's unlikely that they'll need to in order to uphold the law.

That's not a final clearance:  because of the procedural posture of the case, only those specific provisions are in question right now, with other aspects yet to be worked out by the lower courts.  The criticism as to racial profiling, for example, was not at issue; Roberts was clear in his first question to Verilli that "no part of your argument has to do with racial or ethnic profiling, does it?"  After being told that this was correct, Roberts re-emphasized the point:  "So this is not a case about ethnic profiling."  To be sure, some of the justices voiced concern about whether Arizona could legally create a separate state crime out of someone violating a federal immigration provision, but whether that "some" equates to four votes -- because of Kagan's recusal, four votes are all that is needed for a tie and thus an affirmance of the lower court decision striking down those portions of the law -- is a harder question.

So it looks like Arizona will win the first, and biggest battle, with some fighting left to be done.  But there's an interesting development in the war.  The Arizona law, which prompted a number of similar laws in other states, was guided by a doctrine its adherents called "attrition through enforcment":  the laws would make it so tough on illegal immigrants that they'd willingly leave.  In the wake of the passage of the Arizona law, there were numerous stories of immigrants, some of them even legal, bundling up and getting out of Dodge rather than having to deal with being stopped and harassed by the cops on a regular basis.

And it turns out that they're not just going to other states where they might receive more hospitable treatment.  From 1995 to 2000, nearly three million people emigrated from Mexico to the US, while only 670,000 went the other way.  In the five years from 2005 to 2010, the net migration dropped to zero, and may even have reversed itself.  There are a lot of factors in that, the recession being a big one, but there's probably been something to the attrition by enforcement idea as well.

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