U.S. Solicitor General Donald Verrilli, the president’s top courtroom lawyer, met resistance across ideological lines yesterday as he called on the court to strike down Arizona’s crackdown on illegal immigrants. Even Justice Sonia Sotomayor, the court’s only Hispanic and an Obama appointee, told Verrilli his argument is “not selling very well.”
[...] The justices yesterday voiced skepticism about parts of the Arizona law, including penalties on illegal immigrants who seek jobs and a provision that would make it a state criminal offense for a foreigner to be in Arizona without correct documentation.
“They were very concerned about picking and choosing among the sections of the statute,” said Garrett Epps, a law professor at the University of Baltimore who attended the argument.
Still, the justices made clear they see states as having a role to play in addressing the presence of what the government has estimated are 11.5 million unauthorized aliens in the U.S.
At the core of this issue is a simple fact: who gets to determine who is a United States citizen and who is not, and who has jurisdiction over enforcement.
This really gets to the core of the Constitution. After all, states have sovereignty within their own borders with the exclusion of those things specifically delineated by the Constitution (e.g. interstate trade.)
But one of the things that is delineated in the Constitution is the definition of citizen and that the Federal government (through its ability to amend the Constitution) retains the determine the legal status of anyone within its borders.
Hmmmmmmmm...dilemna, right? Well, no, not really.
In the past, the process has gone: arrest, identify (or vice versa), and report to INS or ICE the presence of an undocumented immigrant. The Feds then deport. Problem solved. The whole construct creates a sieve: if you've committed a crime, you've proven yourself dangerous (let's assume they're guilty,) and the cherry on top, you get deported for being here.
Implied in this is that you have to suspect someone of a crime before you can arrest them. The Arizona law makes it a crime merely to walk down the street, if you are here outside the bounds of the law. It makes the very act of breathing American air illegal. It burdens enforcement by the Federal government of immigration statutes.
Now, you'd think that's a pretty reasonable position. After all, to be here illegally, you broke the law.
But you broke a Federal law, not a state law, because, after all, the determination of whether or not you're here illegally is based on your citizenship and states don't get to determine that which is why states don't pass citizenship tests to be an American but...well, you get the idea.
Even Antonin Scalia, unwittingly, stepped into this mess yesterday, as Wonkette pointed out:
“What’s wrong about the states enforcing federal law?” Scalia said during his aggressive questioning of U.S. Solicitor General Donald Verrilli. “There is a federal law against robbing federal banks. Can it be made a state crime to rob those banks? I think it is.”
The Reagan-appointed justice mocked the Obama administration’s argument that S.B. 1070 unconstitutionally forces the federal government to re-prioritize its enforcement resources and go after undocumented people who are not dangerous.
“But does the attorney general come in and say, you know, we might really only want to go after the professional bank robbers?” Scalia said. “If it’s just an amateur bank robber, you know, we’re going to let it go. And the state’s interfering with our whole scheme here because it’s prosecuting all these bank robbers.”
Side note to the Obama administration: I offer my services as Solictor General, because if Donald Verrilli couldn't knock this one out of the ballpark, he deserves to be fired. The simplest comeback to Scalia would have been "So you're equating Citibank to an illegal citizen?"
Thus throwing Citizens United back to the Court.
Let's deconstruct Scalia's asinine argument for a moment: Yes, national banks have branches in states, but the governing law (McFadden Act by way of 1994's Riegle-Neal) is written such that states have jurisdiction over those branches, not the Feds. Meaning that the Federal courts would never even get involved in the prosecution of a simple bank robbery whereas they are regularly involved in immigration cases.
Where the Federal courts would get involved would be, say, widespread corruption & fraud that threatened the entire US economy. *Ahem*
But I digress, you sleazy greaseball of a Justice...
It seems likely that Obama's best hope for overturning the law stands in the area that Justice Sotomayor inquired about:
The Supreme Court was deep into arguments over Arizona's new immigration law on Wednesday when the high court's first Hispanic justice focused on how difficult it could be for police officers to determine whether someone they stop is in the United States legally.
"What information does your (federal) system have?" Justice Sonia Sotomayor asked U.S. Solicitor General Donald Verrilli as she methodically extracted a core element of the Obama administration's case against the state of Arizona.
"How does that database tell you that someone is illegal as opposed to a citizen?" asked Sotomayor, 57, born in the Bronx to parents who had migrated from Puerto Rico. "Today, if you use the names Sonia Sotomayor, they would probably figure out I was a citizen. But let's assume it's John Doe, who lives in Grand Rapids. ... Is there a citizen database?"
If we presume the burden of proof is on the prosecution...you know, assumption of innocence?...then Sotomayor's question gets to the heart of the problem.
See, a cop arrests a random person on the suspicion of being an undocumented worker. This is no different than believing someone is guilty of some other crime.
A cursory check of, say, a driver's license or passport database indicates that the suspect is a citizen, and is therefore free to go. A slight detention, aggravating and inconvenient, but probably no more illegal than being asked by mall security to open your bags at the front door.
What if someone doesn't drive and doesn't travel? There are precious few other resources available to law enforcement to check citizenship status.
Remember, the presumption is, and must be, innocence until guilt is proven. Unless someone proposes a nationwide citizenship database that everyone must register for-- and boy, wouldn't THAT fly well in Teabagger, Arizona!-- you have to presume a person walking down the street is a citizen. Arresting them on the suspicion of NOT being a citizen places the burden of proof on law enforcement and guess what?
Ever try to prove a negative?