Solicitor General Donald Verrilli was back against opponent Paul Clement in the Supreme Court today, this time arguing not about Obamacare but Arizona's infamous immigration law, SB 1070.

Verrilli had a rough go of it last month over the Affordable Care Act arguments, and today wasn't much better. According to the indispensable SCOTUSblog, even the more reliably liberal justices were not buying Verrilli's argument that Arizona overstepped its bounds by legislating immigration policy and enforcement, ostensibly the purview of the federal government. At one point, Justice Sonia Sotomayor flat out told Verrilli his argument "wasn't selling," and asked if he had anything else.

Four different provisions were under review by the Court, including the mandate that state officials inquire about residency status of suspected undocumented persons, and the creation of a state crime for violating immigration laws. Many related cases are already working their way through the lower courts, including the racial profiling aspect of the mandated residency check. Today, however, the Court was narrowly concerned with the legal functionality of the state's enforcement of their individual laws versus the federal government's interests in maintaining a cohesive national immigration policy. If the provisions were upheld for this session, it would not be a clearance for SB 1070's enactment, but would simply mark these provisions as not unconstitutionally trespassing on the federal government's turf.

To that end, Clement sought to portray Arizona's bill as ancillary to federal policy rather than superseding it, an argument the justices seemed amenable to:

Clement’s entire strategy...was to soften the seemingly harder edges of the 2010 state law that set off a wave of new state and local legislation to control the lives of foreign nationals living illegally in the U.S. To each question Wednesday about how S.B. 1070 would work if put into effect, Clement pared down the likely impact and insisted that Arizona was only seeking to be a cooperative junior partner in enforcing federal laws and policies against undocumented immigrants.

But as SCOTUSblug notes in that graph, Arizona is not the only state to pass this style of legislation. If the Court upholds SB 1070 it needs to explicate in some way what it considers the limits of states' ability to encroach upon federal  law, or else, as Scalia would have it, each state could theoretically decide to simply shut its borders. Verrilli argued that in all cases, state authorities defer to the federal policy. But especially with the mandated residency checks, the justices seemed confused as to how the checks counteracted government interest:

 All that Arizona’s law required, Roberts suggested, was that a state officer let the federal government know that there was an illegal immigrant in its midst, and that did not force the government to do anything; it could enforce its ban on such immigrants or not.  Somewhat sarcastically, the Chief commented: "If you don’t want to know who is in theis country illegally, you don’t have to."

Chief Justice John Roberts and Justices Anton Scalia and Clarence Thomas* were antagnostic to the government's argument (*we assume), while the remaining justices seemed more concerned with forming some sort of principle between the state's need to effectively handle pressing illegal immigration issues and the government's need for cohesive policy. Jutice Elena Kagan recused herself.

Remember, Harry Reid is planning a Senate vote in the event of the Court's upholding of the law, to dare national Republican legislators to support the Hispanic-vote-killing bill.

Also of note is Clement's moral justification for the law, that Arizona is overburdened by immigration and underserved by federal policy to the point that it is compelled to act, a portrayal not supported by yesterday's study from the Pew Hispanic Council about the reversing trend of immigration. This will be more important when the racial profiling cases eventually wind up at the SCOTUS (and we know they will); if there is no mass of illegal immigration, neither Arizona nor the government has a compelling interest in violating civil liberties to defeat the problem. Right?

SCOTUSblog's full report is worth a read. If you want the this-is-what-Obama-gets-for-being-Kenyan version, head to Fox News.

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Related: Senate Democrats To Challenge GOP Over Arizona Immigration Law

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