By Jeffrey Rosen

At the conclusion of yesterday’s oral arguments in Arizona v. U.S., the case that will decide the fate of Arizona law SB 1070, Chief Justice John Roberts said, “Thank you, Mr. Clement, General Verrilli. Well argued on both sides.” The tip of the hat to the Solicitor General and his conservative opponent, Paul Clement, seemed designed to reassure Verrilli that he had redeemed himself after his much-criticized previous appearance with Clement in the health care arguments last month.

In fact, however, as he did in the health care case, Verrilli again failed to make the most convincing constitutional argument in support of his position. The argument that the government should have offered in the immigration case closely resembles the one it failed to offer in the health care case. In the immigration case, the argument goes something like this: The Framers of the Constitution intended to transfer power over foreign relations from the individual states to the federal government. The federal government uses its immigration powers—including the power to welcome, expel, detain, and place conditions on aliens—as an instrument of foreign policy. State laws like Arizona’s SB 1070 undermine the uniformity of federal foreign relations policy and can harm relations with foreign countries by inviting retaliation against U.S. citizens abroad.

This is not a particularly novel argument. It appears in briefs filed by the Center for Constitutional Accountability and by former Solicitor General Seth Waxman on behalf of former officials at the departments of State and Defense, as well as in a brief filed by former Democratic members of Congress. In a new book, Living Originalism, Jack Balkin provides further background on why the Framers would have intended to prevent states like Arizona from interfering with federal immigration policy. Balkin notes that the Commerce Clause of Article I, Section 8 of the Constitution, which provides that “Congress shall have the power … [to] regulate Commerce with foreign Nations, and among the several States,” was originally understood “to give Congress power to legislate in all cases where states are separate incompetent or where the interests of the nation might be undermined by unilateral or conflicting state action.” In the area of immigration, this means that Congress needs exclusive authority to control America’s borders as part of its power to regulate commerce—which was originally understood as a synonym for “interactions”—with foreign nations.

Perhaps because of an aversion to making textual and historical arguments about the Constitution, Verrilli avoided this argument in his brief, just as he had avoided it in his brief in the health care case. If Verrilli had emphasized the need for uniform federal control over foreign policy, he could have pointed to the many ways that the Arizona law, SB 1070, has harmed America’s foreign relations, including antagonizing foreign governments, exposing U.S. citizens to retaliation, and making it harder for the U.S. to negotiate in international bodies. At the oral arguments, in response to questions from Justice Scalia and other conservative justices, Verrilli did suggest that federal officials should consider geopolitical considerations in deciding whom to deport. But if he had linked his arguments more closely to the expectations of the Framers, he might have had a better chance of convincing Scalia and his colleagues.

Indeed, what makes Verrilli’s failure to emphasize this argument—that the Framers intended Congress to regulate in cases where the states can’t agree—all the more bewildering is that the conservative justices might have been receptive to it. In other cases, Roberts has repeatedly ruled for national uniformity rather than states’ rights, embracing a broad rather than a narrow view of the federal government’s ability to “preempt,” or displace, inconsistent state laws. In 2010, Roberts joined a 5-4 opinion by Justice Scalia holding that California’s policy of disfavoring contracts that require arbitration as a way of settling lawsuits was preempted by the Federal Arbitration Act, which viewed arbitration more favorably. And in a dramatic 5-4 decision from 2008, Wyeth v. Levine, Roberts joined the conservatives in dissenting from the Court’s holding that federal food and drug law doesn’t preempt the multi-million-dollar jury verdict awarded to a guitar playing woman whose arm was amputated after a nurse improperly injected an anti-nausea drug that caused gangrene. 

Of course, in each of those cases, Roberts and other conservatives were favoring the interests of big business. On matters relating to immigration, by contrast, they have been far less sympathetic to arguments about federal uniformity. In yesterday’s oral argument, Roberts expressed skepticism that the Arizona law was “preempted” by the need for national uniformity in federal immigration enforcement policy. And in a 5-3 opinion last year, Roberts held that an Arizona law suspending the licenses of businesses that hire illegal aliens wasn’t preempted by the federal Immigration Reform and Control Act, which prohibits states from imposing civil or criminal sanctions on business that hire illegal aliens. If Roberts votes to uphold the Arizona law in the name of states’ rights, it will be hard to avoid the conclusion that he favors states’ rights when the interests of anti-immigrant police officers, but not businesses interests, are concerned. 

Regardless of how the Court rules on immigration, liberals don’t have to apologize for urging the Court to strike down the Arizona law and to uphold the health care mandate. In both cases, the Framers of the Constitution feared that inconsistent state policies would make it impossible to enact a national solution to a national problem. If the Obama administration had offered a clear argument about the importance of federal uniformity in both cases, based in constitutional text and history, it might have challenged the conservative justices to be similarly consistent.