Federalism

By Philip A. Kretsedemas, an associate professor of sociology at The University of Massachusetts Boston

For the past two years, the national debate over police involvement in immigration enforcement has focused on Arizona Senate Bill 1070. When it was first enacted, SB 1070 was widely criticized for the broad discretion it allowed Arizona police to question people about their legal status. Much of this criticism focused on the problem of immigrant racial profiling. Opponents of the bill argued that it opened the door for the indiscriminate interrogation of anyone who looks like an unauthorized migrant.

Even though these complaints figured prominently in the public debate over SB 1070, it is rather telling that they have dropped out of the legal arguments that have been marshaled against the bill. One reason for this curious situation is that complaints about racial profiling and selective enforcement have historically been framed as violations of Fourth Amendment rights. But it also so happens that the legal challenge against SB 1070 is being led by the Department of Justice which, for obvious reasons, is not interested in setting legal precedents that would limit the search and seizure power of the police. The Supreme Court, which is currently deliberating over the DOJ's lawsuit against SB 1070, also has a history of favoring the discretionary powers of law enforcement over Fourth Amendment considerations.

It is important to keep this context in mind when evaluating the legal arguments that are being levied against SB 1070. The DOJ is advancing a finely pitched argument which takes issue with the law making powers of local governments but not the search and seizure practices of law enforcement. It is also bears noting that the DOJ is not opposing local immigration laws on principle. The DOJ supported Arizona's employer sanctions law (penalizing businesses that hire unauthorized migrants) which was subsequently upheld by the 9th Circuit and Supreme Court. The federal government also doesn't seem to be opposed, on principle, to the involvement of police in enforcing federal immigration laws. The Obama administration has actually given state and local police new opportunities to enforce immigration laws. It has only taken issue with local enforcement practices that operate outside of the federal-local enforcement arrangements that have already been authorized by federal law.

By Fazal Khan, a law professor at the University of Georgia specializing in health law. Professor Khan has both law and medical degrees. This post is part of an ACSblog online symposium on oral argument in HHS v. Florida.

On Wednesday afternoon the Supreme Court heard oral arguments on whether the states can challenge the federal government’s expansion of Medicaid. Representing 26 states that oppose ACA in its entirety, former Solicitor General Paul Clement went first claiming that the federal government is “coercing” states to accept this unwanted expansion of Medicaid. As expected, the “liberal” justices pounced on Paul Clement’s central argument. Whereas Clement seemed very cocksure Tuesday arguing against the minimum coverage provision, on Wednesday he was not as deft in parrying the skeptical attacks from the justices, including Antonin Scalia and the chief justice.

Clement did regain his poise at the end during a strongly delivered (yet still substantively weak) rebuttal. Solicitor General Don Verrilli bounced back admirably after what can be fairly described as a difficult day on Tuesday. He was much more assertive and confident in pushing back against the “conservative” justices and possessed a strong command of the history of Medicaid and previous mandatory expansions of the program which really seem no different than the expansion at issue today.