President Obama's lawyer has argued more than a hundred cases before the Supreme Court. Last Thursday in Arizona, he got served.
Solicitor General Edwin Kneedler came to challenge SB 1070, the controversial law that would make police arrest and prosecute people suspected of not having papers. It's set to go into effect on Thursday, July 29. The Justice Department has argued the law oversteps constitutional bounds by creating a parallel immigration system that threatens the federal one and interfering with foreign relations. Latin American governments are up in arms.
Looking federal Judge Susan Bolton straight in the eye, Kneedler indicted Arizona for ending an era of "great cooperation" between federal and state officials. For years, local officers have helped the feds perform deportation duties. "That doesn't mean the state can make its own immigration law," he explained.
Before Kneedler could ram home the full force of the Constitution, however, the judge put the plaintiff on defense.
"Arizona can't remove anybody," she asserted. "They don't claim they can." The bill doesn't have a section empowering police to dump people over the border; it directs them to investigate and report people without papers. "Why can't Arizona be as inhospitable as they wish to people who have entered or remained illegally?" Judge Bolton asked.
Arizona was the premiere state partner in a Homeland Security program called 287(g), which since 2002 has made it okay for local law enforcement to ask about papers and detain immigrants without criminal charge. Local police had been picking up immigrants by the thousands, with the feds' blessing, and it's in part why the Obama administration has set deportation records. Kneedler argued that SB 1070 is nonetheless an unconstitutional departure from the course they set because the feds are no longer in the lead.
Given 287(g), Bolton wasn't shocked by the proposition of police asking for papers. She was more interested in sparring with Kneedler over the bureaucratic challenges SB 1070 poses than the constitutional ones. The state bill complicates ICE's ability to set deportation priorities.
Bolton peppered Kneedler with questions about the line between bureaucratic headache and unconstitutional preemption: "Can you really say this is preempted because they're going to make too many phone calls [to ICE]?" and "Can you really take issue because it's burdensome?" and "Can't ICE use its discretion to do what it wants, which could be nothing?"
Kneedler responded, lamely, "The way these things are coded, it's not always apparent whether it's something of time urgency."
It was more a plea than a comeback: Please stop SB 1070 so that it doesn't overload ICE's shoddy databases. We all know the feds created a Frankenstein's monster, he seemed to argue, but at least it doesn't violate the Constitution. Arizona's monster does.
Perhaps. But the feds may have trouble slaying the monster they built.
Gov. Jan Brewer sat front row in the packed courtroom. Though she signed the law in question, her predecessor ought to take more credit.
Homeland Security Secretary Janet Napolitano was nowhere in sight. As Arizona's chief executive, she was the nation's first governor to sign up her jailers for 287(g).
With her backing, in 2007, the feds gave the nation's largest 287(g) contract to Sheriff Joe Arpaio. "If I have to set up tents from here to Mexico, I'll do it," Arpaio said, with typical bravado.
It wasn't an empty threat. A beloved media whore, he'd already made pre-trial detainees wear pink underwear, eat rotten bologna, and stay in makeshift tents under the blazing desert sun. The federal program gave him a new toy gun. Now journalists could watch his deputies round up traffic violators.
Arpaio made a few too many headlines. The Justice Department launched an investigation into racial profiling, which is still pending. Napolitano, as head of Homeland Security, chopped off his street arrest powers, though she left him with the ability to flag people for deportation in the jails. Arpaio, using other state laws that make immigration a crime, continued to arrest people and hand them off for deportation. His and other sheriffs' use of the program is the subject of on ongoing controversy, in and out of the White House.
Napolitano said of SB 1070 in May, "That's not the kind of law I would have signed." She doesn't see (at least not publicly) a direct line from 287(g) to SB 1070. The National Day Laborer Organizing Network does.
"If she reigned in Arpaio earlier, by removing his 287(g) in its entirety," said the group's lawyer Chris Newman, "then the country would be debating whether police involvement at all is okay." Last year NDLON asked the president to terminate the program, on the premise that it leads to mini-Arpaios nationwide.
SB 1070's proponents agree, sort of. In front of the courthouse last week, they closely tied the state law to the federal program.
The intent of SB 1070 is "attrition through enforcement." That is, to scare people without papers into leaving and never coming back. Its author John Kavanagh, however, believes 287(g) is more powerful. Under 287(g), he argued, "You can approach anybody." SB 1070 requires reasonable suspicion of a crime. Officers "have to comply with greater civil liberties safeguards," he explained.
Tom Liddy, Arpaio's attorney, thinks SB 1070 will resuscitate Arpaio's 287(g) model and put it on steroids. Instead of just 160 deputies making immigration arrests, you get 15,000 officers statewide.
"It makes it very difficult for municipalities to do what the federal government is doing, which is ignore the law," Liddy said. In his jurisdiction, he believes "it's not going to be much of a difference."
As part of the Arizona legal team, he told the judge, "The proper forum for the plaintiffs is the U.S. Congress." Standing in front of protesters outside the courthouse, Liddy caught a glimpse of the many signs against and few signs for the bill. "The people of Arizona are happy with the way the federal law is," he said. "They're not happy with the way it's being enforced."
Carlos Garcia dislikes the state law enough to break it. With six other opponents of SB 1070, he unfurled a handmade sign: "We will not comply."
Just before getting arrested for obstructing traffic, he read from a prepared statement, "We expect [President Barack Obama] to take responsibility for ever opening the door that led to SB 1070 with programs like 287(g)."
Garcia is an organizer with Puente, though he said he was acting as an individual in the civil disobedience.
Before organizing a 100,000-person march in May against SB 1070, Puente organized a 25,000-strong march in January against 287(g). "It's a moving target," Garcia said. "And it's getting worse." He points to the sections of the state law that will criminally prosecute day laborers seeking work.
Obama's legal team was the only one to not attend the press conference outside the federal courthouse. There, reporters were ready to add another question to the judge's list: What happens to the federal program that made it okay for local officers to ask about papers in the first place?
The answer won't come from Bolton's much-awaited decision. The fate of 287(g) is in Obama's court.