Bad signs for government’s suit against Arizona law on illegal aliens

Vincent Chiarello writes:

On April 25, the Feast Day of St. Mark the Evangelist, the patron saint of Venice, I was present at the U.S. Supreme Court to hear the oral arguments in the case on the Arizona immigration law, SB1070. Present also were Russell Pearce, who had guided the bill through the Arizona legislature, and Gov. Janice Brewer, who had signed it. While it would be both premature and foolish to conclude that, on the basis of the questions asked during the 90 minute session, the Justices would validate the Arizona statute, Gov. Brewer upon exiting the building told reporters that she thought that events had gone well for the people of Arizona. She had reasons for that optimism. Justice Elena Kagan had recused herself due to her participation in the administration’s legal action against the law, so only eight Justices were present; still, the votes of five are needed to sustain the law.

The attorney who defended the Arizona statute was Paul D. Clement, former Solicitor General under the second President Bush. Although I am not an attorney, I have witnessed innumerable arguments before the Court, and Clement’s performance was simply superb. He fended off the challenges to Arizona’s legislative response to the federal government’s refusal to enforce its own immigration laws; was impressive in his knowledge of the various sections of SB1070; and was able to cite previous Court rulings that raised serious doubts about the propriety of the administration’s stand against the law.

If Clement was the strong oak, the performance of the current Solicitor General, Donald Verrilli, representing the Obama administration in its action against the law, was a weak reed. Although the session had been scheduled for one hour, more time was required for Verrilli to respond to questions about the legal contradictions in his arguments. Both Chief Justice Roberts and Justice Antonin Scalia were relentless in pointing out the deficiencies in the administration’s legal reasoning. The Chief Justice, whose demeanor was always courteous and soft spoken, told Verrilli: “It seems to me the federal government just doesn’t want to know who’s here illegally.”

Justice Scalia would not allow Verrilli any wiggle room when, for example, he repeatedly resorted to the government’s rationale that Arizona’s law would cause “foreign policy problems.” Scalia replied: “We have to enforce laws in a manner that is pleasing to Mexico?” Another bad sign for the administration: all during the barrage of questions aimed at Verrilli, Justice Ginsburg was singularly silent. Perhaps she, too, knew that the government had no valid legal argument.

Court watchers will intone that deciding how a Justice will vote in a case by the questions he raises during oral arguments is unwise. Still, from the flavor and intensity of the questioning, one could understand Gov. Brewer’s cautious optimism. Personally, I will avoid any prediction of the outcome, for there is always this caveat: “After the destruction of the Second Temple, the gift of prophecy was bestowed only on fools.”

Posted by Lawrence Auster at May 02, 2012 08:28 PM | Send

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