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9th Circuit Judge John T. Noonan Jr. can't understand the Justice Deparment's argument that the Arizona immigration law is preempted by federal law.

At oral argument today:

"I've read your brief, I've read the District Court opinion, I've heard your interchange with my two colleagues, and I don't understand your argument," Noonan told deputy solicitor general Edwin S. Kneedler. "We are dependent as a court on counsel being responsive. . . . You keep saying the problem is that a state officer is told to do something. That's not a matter of preemption. . . . I would think the proper thing to do is to concede that this is a point where you don't have an argument."

"With respect, I do believe we have an argument," responded Kneedler, who said the Arizona law is unconstitutional and threatens civil liberties by subjecting lawful immigrants to "interogation and police surveillance.''

Yeah, well, but that's not preemption.

Here's my old post trying to make sense of the preemption argument. I came up with this (admittedly strange and politically inadvisable) argument:

The federal government has responsibility for immigration, and it has expressed, through written law and real-world efforts, an extremely lax policy toward illegal immigration. Given that federal policy and the supremacy of federal law, one could argue that it is not within the state's proper power to dictate a different policy and impose it on the federal government (by referring a lot of new cases of individuals violating federal law).

I really need to see the whole transcript. Ah! Here's today's oral argument:

Full post as published by Althouse on November 01, 2010 (boomark / email).