Focus on the Court: Arizona Oral Argument Recap
Last week, the Supreme Court justices heard oral argument in Arizona v. United States. The legal lineup was one with which we are familiar: Paul Clement represented the state of Arizona and Don Verrilli represented the U.S. government (the same two lawyers argued the Affordable Care Act in front of the Supreme Court a few weeks ago).
The justices are considering the constitutionality of Arizona’s 2010 immigration law, S.B. 1070, which is more far-reaching than current federal immigration policy. The question at hand is: Does S.B. 1070 “complement or hinder federal immigration policy”? If it hinders federal immigration policy, then the preemption doctrine, which holds that federal law takes precedence over state law, would apply. This case is a facial challenge, which means the law has not yet gone into effect, the suit is not brought by a plaintiff who has been directly affected by the law, and the justices must decide that the law would be unconstitutional in any circumstance if they are to overturn it. This also means that, if the justices decide to uphold the law, someone could challenge it after it has gone into effect.
Our Jewish faith demands that we express concern for the stranger in our midst. Leviticus commands, “When strangers sojourn with you in your land, you shall not do them wrong. The strangers who sojourn with you shall be to you as the natives among you, and you shall love them as yourself; for you were strangers in the land of Egypt” [19:33-34]. This principle permeates Jewish tradition and is echoed 35 times in the Torah. Yet every aspect of S.B. 1070 violates that tradition: S.B. 1070 encourages racial profiling and discrimination against people who appear to be strangers, even if they are legal residents or American citizens.
Based on oral argument and past voting records, it seems clear that Justice Scalia will be in favor of upholding the law. Additionally, although he did not speak, Justice Thomas will likely side with Scalia. Justice Kagan has recused herself based on her former position as Solicitor General. The rest of the opinions are anyone’s best guess: Much of the press coverage immediately after the arguments said a majority of the justices appeared to be leaning toward upholding S.B. 1070, but some SCOTUS experts have predicted a 5-3 decision (Majority: Alito, Kennedy, Ginsburg, Breyer, and Sotomayor; Dissent: Roberts, Scalia, Thomas; Recuse: Kagan) agreeing with the lower court’s ruling that the federal law preempts Arizona’s laws.
In order to protect our basic civil rights, the Supreme Court needs to strike down this law. And then Congress and the Administration must get to work on passing national, comprehensive immigration reform, not a confusing patchwork of 50 different policies.