Oral Argument

By Gabriel J. Chin and Marc L. Miller. Chin is a Professor of Law at the University of California, Davis, School of Law, and Miller is Vice Dean and Bilby Professor of Law at the University of Arizona, James E. Rogers College of Law. See “SB1070 in the Supreme Court,” their pre-oral argument analysis for ACSblog.

The argument in the SB1070 case went 20 minutes over its scheduled hour.  Most of the justices' questions addressed Section 2, which requires local police to investigate the immigration status of anyone stopped by the police who they suspected of being undocumented. 

Justices Kennedy and Scalia each asked the fundamental question of whether “a state must accept within its borders a person who is illegally present under federal law.” Paul Clement answered no, frankly claiming for the states the powers of deportation and border control.

Justice Scalia agreed. 

This question is at the heart of the case. All provisions of SB1070 are roundabout ways of forcing undocumented aliens to leave.  If Arizona has direct regulatory authority over illegal immigration, they need not operate indirectly; Arizona should just pass a law requiring the undocumented to leave, punishing them if they refuse.

Arizona did not do this because it doubts it has that power.  Such a claim would be at odds with the traditional approach, as represented, for example, by Chief Justice Burger, joined by Justices White, Rehnquist & O’Connor dissenting in Plyler v. Doe,who wrote: “A state has no power to prevent unlawful immigration, and no power to deport illegal aliens; those powers are reserved exclusively to Congress and the Executive.”

But if states do not have the power to regulate directly, then, as Mr. Clement recognized when answering this question, their claim to be able to do so indirectly is undermined.

In the modern electronic glow that seeks to cast major cases into six word headlines and sound bites, many commentators have observed that the justices supported Section 2. It was common ground among the justices and counsel that an officer acting on her own (rather than by statutory mandate) may question a suspect about immigration status, at least so long as it does not prolong a detention.

But looking at the exchanges between the Justices and the advocates, a more nuanced picture emerges.

by Jeremy Leaming

So it appears just based on oral argument action, if you believe pundits, such as CNN’s Jeffrey Toobin that the high court’s conservative justices are ready to trash precedent and accept the simplistic arguments of the challengers that the Affordable Care Act’s minimum coverage provision is a wild overreach by the federal government.

As noted in this ACSblog post, UCLA constitutional law professor Adam Winkler says we shouldn’t be surprised that the high court’s right-wing majority may be leaning this way. It has already proved it has no problem shunning precedent or being out-of-touch, for example see Citizens United v. FEC.

In a piece for The Huffington Post, ACS President Caroline Fredrickson argued against the idea that the minimum coverage provision is “unprecedented,” as its challengers like to call it.

“What is truly radical,” Fredrickson says, “is the economic theory the state and individual challengers are pushing, which calls for a greatly limiting the ability of Congress to address national concerns. It’s an argument that longs for the days when courts actively shut down congressional attempts to solve national problems.”

Geoffrey Stone, a constitutional law expert and a member of the ACS board, explains, also in a Huffington Post article, why the law’s minimum coverage provision, which will require Americans who can afford to do so to starting carrying health care insurance in 2014, is seemingly so unappealing to the high court’s conservative wing. Primarily the conservative wing appears to be obsessed with a slippery slope – if folks can be required to purchase health care insurance then what’s next?

Stone notes that the “slippery slope is a means of reasoning, not a conclusion. Every principle and decision has a slippery slope: The question is whether we can get off the slope before it reaches bad outcomes. In this instance, this is easy. The decisions of millions of individual Americans not to purchase health insurance (even though they can afford it) have a dramatic impact on the cost of health care for everyone else and on interstate commerce. This is clearly an appropriate matter for federal attention under the Commerce Clause.”