"You can see it's not selling very well."

April 25, 2012 12:30 PM

The US Supreme Court today heard arguments in the case of Arizona et al vs. United States, which concerns the role of states in enforcing federal immigration law. Two years ago this month, Arizona Governor Jan Brewer signed into law SB 1070, considered by many to be the toughest anti-immigration law in the country. In an ensuing outcry, the legislation was called racist and its backers nativists, with several groups organizing boycotts against the state of Arizona.

According to news accounts of the proceedings, "Justices across the ideological spectrum appeared inclined to uphold a controversial part of Arizona’s aggressive 2010 immigration law, based on their questions on Wednesday at a Supreme Court argument." But while judges did not appear to find constitutional problems with immigration status checks during routine stops, "the justices also said they were troubled by parts of the Arizona law that made it a state crime for illegal immigrants to not carry documents or seek work."

[Transcript of today's argument.]

The lead attorneys in the case will be familiar to those who followed the arguments over the Affordable Care Act: US Solicitor General Donald Verilli and Paul Clement.

Previously on Metafilter.

posted by BobbyVan (48 comments total)

It's clearly time for a Constitutional Amendment to do away with lifetime appointments to the SCOTUS.
posted by mrbarrett.com at 12:34 PM on April 25, 2012 [7 favorites]

It's kind of been annoying me for months that people seem hell-bent on calling these things before a judgement has actually been rendered.
posted by koeselitz at 12:37 PM on April 25, 2012 [3 favorites]

From Fox News' coverage:

The Supreme Court signaled Wednesday that it might uphold a key element of Arizona's immigration law, as justices across the board suggested the state has a serious problem on its hands and should have some level of sovereignty to address illegal immigration.

They don't bother to note that it wouldn't be the Supreme Court's place to determine the nature of whatever social problems may exist, much less deliberate on the need for the law itself. Furthermore, this ostensible evidentiary determination is called into question by recent empirical findings.

Granted, not all undocumented immigrants entering the US are from Mexico, but the observed trend does make one wonder if this "serious problem" is immigrants themselves or ill-informed paranoia.
posted by clockzero at 12:42 PM on April 25, 2012

It's clearly time for a Constitutional Amendment to do away with lifetime appointments to the SCOTUS.

Unfortunately, that would create more problems than it would solve.
posted by Melismata at 12:43 PM on April 25, 2012 [9 favorites]

One thing (of many) I don't understand is the part of the law that requires undocumented immigrants to carry documents.

I'm an American citizen, and as such, I don't carry proof of citizenship when traveling in my own country. If I get arrested in AZ (I have brown eyes and dark hair and olive skin), I can't prove my citizenship. I also can't prove my lack of citizenship. Would I end up jailed for breaking a law that can't possibly apply to me?
posted by rtha at 12:44 PM on April 25, 2012 [5 favorites]

Do you have a social security number, rtha? Do you have a driver's license?
posted by spicynuts at 12:47 PM on April 25, 2012

In an ensuing outcry, the legislation was called racist and its backers nativists, with several groups organizing boycotts against the state of Arizona.

Yes, but even the Obama administration's lawyer says this case has nothing to do with whether the law is racist or nativist. From your NYT link:

Chief Justice John G. Roberts Jr. made clear that the case, like last month’s arguments over President Obama’s health care law, was about the allocation of state and federal power.

“No part of your argument has to do with racial or ethnic profiling, does it?” the chief justice asked [Solicitor General] Verrilli, who agreed.

posted by John Cohen at 12:51 PM on April 25, 2012 [3 favorites]

Do you have a social security number, rtha? Do you have a driver's license?


Neither of those are proof of citizenship.
posted by Quonab at 12:53 PM on April 25, 2012 [1 favorite]

Do you have a social security number, rtha? Do you have a driver's license?

There's quite a few situations where one wouldn't have their wallet on them, and random numbers can be memorized. Should his SSN/proof of citizenship be tattooed on his arm?
posted by Orange Pamplemousse at 12:55 PM on April 25, 2012

Yeah, lots of non-citizens, legal residents and not, have drivers licenses. Many undocumented immigrants have SSNs. I mean, I have one, too, but it's not like I carry the card around with me. Even if I did, what would that prove? I could prove that I'm legit enough to have a real card. It could also prove that I have access to someone who can provide me with a real-looking copy.
posted by rtha at 12:57 PM on April 25, 2012 [1 favorite]

Do you have a social security number, rtha? Do you have a driver's license?

They are not...but they are data points to allow police to confirm citizenship to a reasonable degree. However, I forgot that this case was about stopping on the street, so my point is irrelevant.
posted by spicynuts at 1:12 PM on April 25, 2012

Do you have a social security number, rtha? Do you have a driver's license?

Those things don't help prove the citizenship of, say, someone who's come to the police station because their wallet has been stolen.
posted by Faint of Butt at 1:13 PM on April 25, 2012

It's clearly time for a Constitutional Amendment to do away with lifetime appointments to the SCOTUS.

Unfortunately, that would create more problems than it would solve.

One that banished Scalia to the netherworld would be ideal, however.
posted by elizardbits at 1:16 PM on April 25, 2012 [2 favorites]

This leads to an interesting point made in a New York Times opinion piece from a few days ago, which discusses a similar Alabama law and argues that negative effects on foreign investment may cause states to reverse similar laws on their own.

Let Arizona’s Law Stand

Even more important is the prospect of lost foreign investment. Caught in the net of Alabama’s law in November was a German Mercedes-Benz executive, who left his passport at home while out for a drive and as a result found himself in a county jail. Mercedes has a plant in Tuscaloosa that employs thousands of Alabamians and adds many hundreds of millions of dollars to the state economy. That embarrassment will make the next foreign company think twice as it scouts out a location for a manufacturing facility in the United States.

Even without such blunders, international human rights advocates, union organizers and shareholder activists are putting these laws on the corporate social-responsibility agenda. Earlier this month, opponents of Alabama’s law traveled to Berlin to press the issue at Daimler’s annual meeting. This is the kind of hassle that corporations hate. Why deal with Alabama or Arizona when you can build in North Carolina or Florida, states that have refrained from pursuing extreme anti-immigrant measures?

posted by BobbyVan at 1:17 PM on April 25, 2012 [1 favorite]

mrbarrett.com: It's clearly time for a Constitutional Amendment to do away with lifetime appointments to the SCOTUS.

Wiki.answers.com on why US Supreme Court justices appointed for life. If you think the swing from a few new justices within the four to eight year term of a president is bad, think about a whole new bench with each president, or replacement of justices an unfavorable ruling.
posted by filthy light thief at 1:34 PM on April 25, 2012 [1 favorite]

I wrote the Governor of AZ a letter back when she first signed this into law. She didn't answer. I wrote one of the university presidents that actually had the balls to say it was a stupid law. And I wrote the Attorney General of AZ a letter saying I was staying the fuck out of Arizona as long as they had this law.

Only he wrote back. He defended the law. Now I guess I have to get that letter online.
posted by cjorgensen at 1:38 PM on April 25, 2012

25 years ago we discovered the answer to your question, rtha.

Also, I'd like to know what the basis of the anti-immigration argument - did it basically boil down to "thur take'n ur juerbs!" or more "they aren't white enough?"
posted by Old'n'Busted at 1:38 PM on April 25, 2012 [1 favorite]

Get out of my brain, Old'n'Busted! That's a movie I think of whenever this issue gets discussed.

If anyone's thinking that oh hey, funny fictional movie but that doesn't really happen, well, it does.
posted by rtha at 1:45 PM on April 25, 2012 [1 favorite]

So, rather than electing SCOTUS justices or having them serve for life (or until they decide to retire) why not term limits? Just set the length such that no single president gets to nominate more than one or two per term to avoid any Supreme Court packing ala FDR. People live a lot longer than when the Constitution was written, I have to believe that the Founders would have done things differently had they known how long people would live 200 years later.
posted by tommasz at 1:46 PM on April 25, 2012 [1 favorite]

I think that there's an argument that's in between 'replace supreme court justices every presidential term' vs. 'serve for life'.

Why not have the supreme court justices serve a maximum of, say, 20 years? Antonin Sclalia has served for 26 years. I think that's plenty.
posted by Green With You at 1:49 PM on April 25, 2012

Should his SSN/proof of citizenship be tattooed on his arm?

Why come you got no tattoo?
posted by Mister Fabulous at 1:52 PM on April 25, 2012

Hmm. The law says you have to present a "valid federal, state, or local government-issued identification, if the issuer requires proof of legal presence in the United States as a condition of issuance."

For a brief time a couple years ago, California granted drivers' licenses and state IDs to non-legal residents.

That means any California ID is not proof of immigration status in Arizona. Anyone from California -- including non-immigrants -- could be arrested at any time, and thrown in the clink.

That's got to be good for business.
posted by miyabo at 1:55 PM on April 25, 2012

I should say that plenty of the early justices served for quite a long time. 11th justice Bushrod Washington served 31 years!
posted by Green With You at 1:56 PM on April 25, 2012 [1 favorite]

It's clearly time for a Constitutional Amendment to do away with lifetime appointments to the SCOTUS.

The Rotation of the Justices: A Thought Experiment
posted by T.D. Strange at 2:07 PM on April 25, 2012

Wouldn't term limits make the Court even more political? Certainly Presidential campaigns (and probably Senate campaigns too) would be different if we knew for certain that a particular justice's seat would be up for grabs in the next few years.

And I wonder if states and interest groups would try to game the system as well, especially if a particularly troublesome justice's term was nearing its conclusion ("let's drag this case out another 6 months, Ginsberg will be out by then...").
posted by BobbyVan at 2:10 PM on April 25, 2012

Simple solution:
Every election cycle the SCOTUS is sent to an uninhabited island to decide who is the piggy, Lord of the Flies style.
posted by wcfields at 2:35 PM on April 25, 2012 [1 favorite]

The highest courts of Canada and Australia impose retirement ages of 75 and 70 respectively. Since the average age at appointment of a US Supreme Court judge is 53, this would typically amount to a 20-year term, with the advantage of being known in advance.
posted by aeschenkarnos at 3:31 PM on April 25, 2012 [1 favorite]

It's clearly time for a Constitutional Amendment to do away with lifetime appointments to the SCOTUS.

Not that I don't agree -- I think 80 year olds, 90 year olds should not be the ones deciding these cases. But at the same time there's no guarantee it would lead to a more liberal bench. The more problematic judges are the ones bush appointed, the "younger" conservatives are worse.
posted by delmoi at 4:04 PM on April 25, 2012 [2 favorites]

Hmm. The law says you have to present a "valid federal, state, or local government-issued identification, if the issuer requires proof of legal presence in the United States as a condition of issuance."

For a brief time a couple years ago, California granted drivers' licenses and state IDs to non-legal residents.

That means any California ID is not proof of immigration status in Arizona. Anyone from California -- including non-immigrants -- could be arrested at any time, and thrown in the clink.

Yeah, it makes no sense. If you're a citizen, and you don't have proof of citizenship, how exactly do you avoid going to jail? If you simply say you're legal, can they not arrest you?

That said, presumably they can just check your name/SSN against a database that would eliminate most citizens from the problem. For non-citizens, it would be more complex because green cards and visas expire, and databases can be out of date.
posted by delmoi at 4:06 PM on April 25, 2012

Should his SSN/proof of citizenship be tattooed on his arm?

Yeah, because that's worked well in the past.
posted by Blue_Villain at 4:24 PM on April 25, 2012 [1 favorite]

"presumably they can just check your name/SSN against a database that would eliminate most citizens from the problem."

Not necessarily when I became a naturalized citizen no one told me that it was up to me to notify Social Security that they should change my status. So, it wasn't until much later (while it was taking Homeland Security a year to get me a new naturalization certificate) that I went to their offices to have them list me as a citizen. Even if the SSN database is automatically updated now, I'm sure there are lots of people who slipped through the cracks like I did.
posted by oddman at 4:33 PM on April 25, 2012

Not necessarily when I became a naturalized citizen no one told me that it was up to me to notify Social Security that they should change my status. So, it wasn't until much later (while it was taking Homeland Security a year to get me a new naturalization certificate) that I went to their offices to have them list me as a citizen. Even if the SSN database is automatically updated now, I'm sure there are lots of people who slipped through the cracks like I did.

Contrary to what most people think, Social Security numbers were never intended to be used for anything like a nationalID, citizenship, criminal records or credit reports. They just evolved to be used for all those purposes out of laziness and inertia.
posted by T.D. Strange at 4:42 PM on April 25, 2012 [3 favorites]

Ironically, Mitt Romney had a solution for de-politicizing the appointment of judges. In Massachusetts, he formed a nonpartisan commission of legal experts who were bound by a very strict code of ethics and tasked with conducting a blind search for potential judicial appointees. Only candidates vetted by this commission could be nominated for judicial appointments.

Romney’s first chief legal council, Daniel B. Winslow, who served from 2002 to 2004, established a non-partisan process for vetting judges through the Judicial Nominating Commission that was touted as a national model, because the primary application was judged blindly. That meant name, race, gender, and party affiliation, were not known during the initial review. Party affiliation was never a consideration, he said.

“People with political agendas really aren’t suitable for judgeships,” said Winslow, a former district court judge who is now a Republican legislator from Norfolk.

This worked great, until Romney realized that reality has a liberal bias and that a side effect of letting a bunch of experts blindly select potential judicial nominees based solely on merit was that many more Democrats were being appointed to the bench than Republicans:

Winslow said that during the two years he served in the administration, the major reason Romney had few Republican appointments was a result of the talent pool.

“The fact is that there simply aren’t a lot of conservative lawyers in Massachusetts who were available for judgeships,” he said. “The pool of applicants was very low in many respects.”

Near the end of Romney’s term, in 2006, that he stripped the Judicial Nominating Commission of many of its powers, allowing his administration to put a more direct stamp on the judiciary, as he prepared to run for president.

posted by RonButNotStupid at 4:52 PM on April 25, 2012 [9 favorites]

I recommend that once a year all the justices compete in some type of contest. The winner gets to nominate 2 justices for dismissal, and the rest vote on which of the chosen 2 to kick off the island, I mean bench. We can televise it to get the public interested in the Supreme Court. Call it Supreme Survivor, Court Rules, or Jersey Court.
posted by Bort at 4:54 PM on April 25, 2012

Heh. Judicial hunger games. I like it.
posted by imdaf at 5:31 PM on April 25, 2012

- Do you have a social security number, rtha? Do you have a driver's license?

- Neither of those are proof of citizenship.

- There's quite a few situations where one wouldn't have their wallet on them, and random numbers can be memorized.

Y'all, regardless, didn't anyone ever tell you not to keep your social security card in your wallet? Even the government says not to.
posted by naoko at 5:40 PM on April 25, 2012 [1 favorite]

not to worry, rtha, voter ID laws will take care of all that confusion.
posted by mwhybark at 6:07 PM on April 25, 2012 [1 favorite]

I'm pretty sure my original social security card had a tear-off flap that said to keep it with you. Which brings some sense to their dimensions as the damn things are the size of a business card and I always lose track of mine.
posted by polyhedron at 6:23 PM on April 25, 2012

The letter I sent to the AZ AG. (self-link.)

Every now and again something rubs me the wrong way and I get on a roll. I would have written more people if I'd thought it would have done any good. I've visited Arizona 4 or 5 times in my life. My grandmother lives there. I don't intend to ever set foot in that state again.
posted by cjorgensen at 6:33 PM on April 25, 2012 [1 favorite]

I hear you, cjorgensem, and wholeheartedly support the Arizon boycott idea, even as a person who was born there. That said, I would suggest that one might wish to not let the actions of shitheads and bigots cut you off from your family.
posted by mwhybark at 6:43 PM on April 25, 2012 [1 favorite]

It's already illegal to be an illegal immigrant. The purpose of this law was to "put people in their place" by appeasing racists in Arizona who blame their states ills not on their own misguided priorities but on the underclass that staffs their least desirable jobs.
posted by chaz at 10:52 PM on April 25, 2012 [2 favorites]

I'm an American citizen, and as such, I don't carry proof of citizenship when traveling in my own country. If I get arrested in AZ (I have brown eyes and dark hair and olive skin), I can't prove my citizenship. I also can't prove my lack of citizenship. Would I end up jailed for breaking a law that can't possibly apply to me?

In the Netherlands, you're obliged to carry an ID (passport, driving licence or European ID card) with you at all times. The legal requirement for showing this proof of ID only exists if a police officer asks you for it in the context of a criminal investigation; you don't need to show it just because they ask you for it, but only if they have a valid reason.

This didn't stop the police a few years ago however from treating arrested but not charged activists who refused to identify themselves as illegal immigrants, threatening them with expulsion from the Netherlands, even though it was obvious to all involved that these were indeed Dutch citizens....

So, yes.
posted by MartinWisse at 11:10 PM on April 25, 2012

I'm sure Scalia, in his infinite and totally neutral legal wisdom, will discover the original intention of the Founding Fathers was to fuck over innocent brown people.

It's totally in the Constitution.
posted by bardic at 12:36 AM on April 26, 2012 [1 favorite]

In the Netherlands, you're obliged to carry an ID (passport, driving licence or European ID card) with you at all times. The legal requirement for showing this proof of ID only exists if a police officer asks you for it in the context of a criminal investigation; you don't need to show it just because they ask you for it, but only if they have a valid reason.

I guess this proves that the Dutch, exactly like the citizens of Arizona, are totally conservative and racist.

But funny enough, the Netherlands, just like Arizona is crawling with people of different races. Go figure.
posted by three blind mice at 2:25 AM on April 26, 2012

I guess this proves that the Dutch, exactly like the citizens of Arizona, are totally conservative and racist.

Did you even make it to MartinWisse's second paragraph before your little snark-o-gram?

More to the point, Arizona only requires the Mexican-looking people to carry ID at all times.
posted by dirigibleman at 6:57 AM on April 26, 2012

bardic, I think you're badly misrepresenting Scalia's thought processes here. You're presupposing the existence of innocent brown people.
posted by McCoy Pauley at 8:46 AM on April 26, 2012

Also, it's probably not so much a thought process as much as a cascade of knee jerk reactions grounded blind biases.
posted by oddman at 7:28 AM on May 8, 2012

In other news: Arizona’s Top Election Official Goes Birther, Threatens To Keep Obama Off The Ballot
posted by homunculus at 12:31 PM on May 19, 2012