On Wednesday, U.S. Solicitor General Donald Verrilli and Paul Clement, a veteran of George W. Bush's Justice Department, will appear before eight justices -- Justice Elena Kagan recused herself -- in yet another highly-politicized case testing the scope of federal power, this time over immigration enforcement.
The issue for these two Supreme Court pros is whether federal immigration law preempts Arizona's own enforcement regime, known as S.B. 1070.
The immigration issue has split the parties. Republican lawmakers in five states -- Alabama, Georgia, Indiana, South Carolina and Utah -- adopted immigration laws similar to or tougher than Arizona's, to pick up where they say the federal government has failed.
Democrats, many of whom criticized these laws as license for racial profiling, prefer to leave immigration enforcement and reform legislation to the federal government.
A Supreme Court ruling on this clash between a Republican-leaning Arizona and a Democratic White House is likely to become a flashpoint in the 2012 elections.
Mitt Romney, the presumptive Republican nominee, said as president he would drop the lawsuit against Arizona, while the Obama administration wants to tackle immigration reform in Congress. The Justice Department also has pending lawsuits against some of the states with Arizona-style immigration laws.
'Ultimate Enforcement Authority'
For Verrilli, the veteran appellate attorney will have a high-profile opportunity to rebound from his uneven performance during the health care arguments in March.
He is seeking the court to block provisions of the Arizona law requiring law enforcement to check the legal status of anyone arrested, detain anyone suspected of being an undocumented resident and arrest without a warrant anyone accused of breaking a law in the U.S. that could lead to deportation; creating a state crime for breaking federal immigration law; and prohibiting undocumented residents from seeking or performing work.
Verrilli argued in a legal brief that immigration enforcement involves sensitive subjects, such as national security, law enforcement, foreign policy and humanitarian concerns.
Arizona seeks to interpose its own judgments on those sensitive subjects, Verrilli wrote. For each state, and each locality, to set its own immigration policy in that fashion would wholly subvert Congress's goal: a single, national approach.
Rather than assisting federal officials, Verrilli says, the Arizona law stymies their efforts by requiring state and local police to indiscriminately enforce national immigration laws, leaving no room to heed the federal government's judgment on enforcement matters.
The framework that the Constitution and Congress have created does not permit the states to adopt their own immigration programs and policies or to set themselves up as rival decisionmakers based on disagreement with the focus and scope of federal enforcement.
'Broken' Enforcement System
The legal brief from Clement, a former solicitor general who is representing Arizona, is an indictment of what the state sees as the Obama administration's lax enforcement of immigration laws and inadequate enforcement.
Illegal immigration has a disproportionate impact on Arizona, and unchecked illegal immigration has led to violence, human and drug smuggling and safety risks for citizens, the brief said.
Clement noted that national parks in Arizona have signs warning visitors about encountering smugglers, rather than wild animals.
To stem the flow of illegal immigration into Arizona, S.B. 1070 hewed closely to federal immigration standards and is within a state's power to offer help to Washington, D.C., in enforcing the law, Clement argues.
Further, Clement says there is no Supreme Court precedent barring states from dealing with illegal immigrants already in the U.S. That holding was articulated in a landmark 1976 case known as De Canas v. Bica, which established a test to determine when federal law overrules a state statute.
The De Canas Court held that the [principal federal immigration statute] does not preempt a state's regulation of illegal aliens that is harmonious with federal regulation, Clement said.