WASHINGTON, DC — As the Supreme Court heard oral arguments Wednesday on the constitutionality of Arizona’s “papers, please!” immigration law, supporters rallied outside with hate-filled jabs at Latinos and immigrants in general.

Though outnumbered by opponents of SB 1070 at least 20-to-1, supporters made up for their timid numbers with unabashed hate and racism. Among the things SB 1070 proponents said that were overheard by ThinkProgress:

• “Go back to your third-world armpit if you don’t like it!”
• SB 1070 supporter, pointing to SB 1070 opponents, many of whom are Latino: “We can read, unlike some of the people over there”
• Select lyrics from a song called “God Save Arizona” that compared Attorney General Eric Holder to Japanese bombers at Pearl Harbor: “On a clear Sunday morning 1941…they sank the Arizona in a cloud of fire and smoke…And years later in 2010, Arizona is a target once again…Attacked by drug lords, terrorists, and our own Attorney General”
• A button that read, “Don’t Blame me… I voted for the American.”
• “Mexico doesn’t even want them.”
• SB 1070 supporter to a nearby opponent: “Why don’t you put that sign in Spanish?”
• SB 1070 supporter, pointing to SB 1070 opponents, many of whom are Latino: “Those people over there are trespassing!”
• “Obama can’t even come up with a decent birth certificate.”

Watch a few of the remarks:

The good news at today’s Supreme Court argument on Arizona’s SB 1070 immigration law is that the justices appeared likely to strike some of the law down. States are not permitted to set their own immigration policy because immigration, like all other foreign policy matters, is reserved to the national government. There are probably not five votes to eliminate this rule altogether and allow Arizona to criminalize the mere act of being an undocumented immigrant.

The bad news is that the “show me your papers” provision requiring police to determine the immigration status of many people they have “reasonable suspicion” to believe is not in the country legally, is likely to be upheld. And it is likely to be upheld due to a fairly strained reading of federal law.

A majority of the Court appeared sympathetic to Republican superlawyer Paul Clement’s argument that, even if the Court does not eliminate the longstanding rule against states’ setting their own immigration policy, federal law effectively deputizes Arizona to seek out and discover undocumented immigrants within its borders. Under the provision Clement relies on, states are permitted to “cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” So Clement claims that SB 1070 simply “cooperates” with the federal government by helping to identify undocumented immigrants that federal officials can then detain or deport.

There are a number of problems with this argument, but the most important one is that Arizona is not “cooperating” with the Attorney General in anything — a reality that is pretty conclusively demonstrated by the fact that the Attorney General is suing the state of Arizona to get them to stop enforcing SB 1070. It is a bizarre form of “cooperation” that leads your partner in an endeavor to seek a federal court order to get you to stop trying to lend a hand.

An equally important problem, which Solicitor General Don Verrilli relied upon heavily in Court, is that it’s also not true that federal law calls for the kind of sweeping “attrition through enforcement” regime that SB 1070 expressly states is its goal. The federal government does not deport people who are likely to be tortured in their home country, for example, or many victims of domestic violence. Likewise, federal immigration law delegates authority to set immigration enforcement priorities to the executive branch of the federal government, and the executive branch has used that authority to focus enforcement on high priority groups such as violent criminals and repeat offenders. SB 1070 forces the federal government to waste limited resources deciding how to handle low-priority immigrants that it has no intention of pursuing enforcement actions against — resources that could instead be spent on higher priority targets such as violent felons.

One silver lining came early in the argument when several justices, including crucial swing vote Justice Kennedy, appeared bothered by the fact that the “show me your papers” provision might permit Arizona to detain an individual longer than they would normally be detained while the state is trying to figure out whether or not the person is undocumented. A few of these questions even suggested that the provision could be unconstitutional if it extends the period when someone can be detained. Chief Justice Roberts, however, also seemed to find a way to resolve this dilemma that the Court’s conservatives could find appealing.
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Mitt Romney had the most conservative immigration policy of any Republican presidential candidate during most of the primary, but now that’s he trying to appeal to Hispanic voters as he pivots to general election, the presumed GOP nominee has been shifting back towards the center. Yesterday, he opened to door to a Republican alternative to the DREAM Act — a law he vowed to veto during the primary — and earlier, he said that he never called for making Arizona’s harsh immigration law a “model” for the nation.

But that’s not how one of the key people behind that law, former Arizona Senate President Russell Pearce, sees it. The former Republican lawmaker, who was ousted in a recall election, was the key force behind turning SB-1070, authored by Romney adviser Kris Kobach, into law.

He told reporters today that he “absolutely” believed Mitt Romney had endorsed the law as a model for the country. The Huffington Post’s Elise Foley reports:

“The folks that he’s said [are] his advisers on this, I have worked with for years and have great confidence and trust in them,” Pearce told reporters after a Senate subcommittee hearing on the immigration law. “I know Romney is a compassionate man, most of us, I’d like to think, are. But I think he also understands the crisis and the damage to this republic and the need to enforce our law.” [...]

Romney also has advocated for what he called “self-deportation,” or making things difficult for undocumented immigrants until they decide to leave, one of the central tenets of the Arizona law. [...] “[Self-deportation] is in SB 1070,” Pearce said.

Previously, Pearce has said that Romney’s “immigration policy is identical to mine.”

Romney has tried to distance himself from Kobach, who also helped author the controversial immigration crackdowns in Alabama, South Carolina, and other states. But Kobach quickly contradicted him, saying he regularly advises senior members of Romney’s staff.

The legal doctrine at the heart of tomorrow’s Supreme Court argument concerning Arizona’s harsh immigration law is known as “preemption.” Because the Constitution makes federal law the “supreme law of the land,” federal law preempts any state law that conflicts with it and it can even invalidate laws which undermine the goals of federal legislation. Thus, the Obama Administration argues, the Arizona law is invalid because it systematically undermines the balance struck by our federal immigration system.

Under existing law, there is little question that the administration is correct. For at least seventy years, the Supreme Court understood that state immigration laws are almost always preempted, and for good reason. Foreign nations do not take kindly to mistreatment of their citizens within the United States, and such mistreatment can have catastrophic consequences. In the Court’s words, “[e]xperience has shown that international controversies of the gravest moment, sometimes even leading to war, may arise from real or imagined wrongs to another’s subjects inflicted, or permitted, by a government.”

As a bipartisan group of senior State and Defense officials warned the justices in an amicus brief, Arizona’s law “risk[s] embroiling the national government in disputes not of its making,” forcing the entire nation to live with the consequences of just one rogue state’s actions. Foreign policy decisions should be made by officials elected to govern the entire United States, not just one of fifty states, and so the Supreme Court has historically respected the federal government’s exclusive authority over immigration policy.

Significantly, the rule favoring preemption of state immigration law distinguishes immigration from most other areas of law. Neither America’s national security nor its foreign policy is as clearly implicated by laws protecting consumers, workers, children or the elderly, so state laws protecting these groups has not historically been subject to sweeping claims of preemption. In these cases, the courts apply a “presumption against pre-emption,” and seek to preserve state law unless Congress clearly intended otherwise.

In other words, the balance of power between the federal and state governments has been clear for many decades. Just as Arizona is not allowed to declare war on Mexico or negotiate a free trade agreement with China, it also may not set its own immigration policy because foreign policy matters must be decided by the national government. Arizona is free, however, to protect the health, safety and economic prosperity of its citizens by regulating businesses and ensure that all products sold within the state are safe.

Both parts of this balance of power are now threatened by the conservatives on the Roberts Court.

On the domestic front, many of the Court’s conservatives appear eager to simply eliminate the presumption against preemption in favor of a new presumption in favor of wealthy corporations. Thus, several of the Court’s conservatives joined a dissent claiming that the existence of FDA regulation of the drug industry immunized drug companies from a lawsuit brought by a woman who lost her arm and her livelihood to a dangerous drug. And this is hardly the only example of the conservative justices aggressively trying to wipe out state laws protecting ordinary Americans from corporate excesses.

Tomorrow’s case asks the justices to reverse the equally well-established rule against permitting states to set their own immigration laws. If the justices take Arizona up on this request, the consequences will not simply be felt by the thousands of immigrants forced into the shadows by Arizona’s illegal law. It will be felt by all Americans as our nation’s foreign policy suffers, and as the Roberts Court once again shows their disregard for the law.

Parts of Arizona’s immigration law are likely to be deemed unconstitutional, according to Ken Starr, former United States Court of Appeals judge, Solicitor General under George H. W. Bush and the lead inquisitor against President Clinton during his presidency. Starr and another former solicitor general, Neal Katyal, both agreed on CNN’s State of the Union this Sunday that parts of the “show us your papers” bill could be struck down when the law goes to the Supreme Court in two weeks:

STARR: There are parts of the law, though, that I believe are quite problematic. And in particular, the provision with respect to individuals who are undocumented seeking work. Congress saw fit not to make that a crime. To have employer sanctions, but not employee sanctions, and I feel that’s problematic.

CROWLEY: Do you in general agree with that?

KATYAL: I certainly agree. I think Judge Starr has nailed it on the head when he said those provisions that make certainly things criminal are really likely to go down. I think those are very hard to defend.

Watch it:

Starr is certainly right about what will happen in this case if the Supreme Court decides to follow the law. The Constitution does not permit states to intrude deeply into immigration policy because of immigration’s close connection to foreign policy and national security — both of which are issues that are reserved for the federal government. Unfortunately, after last month’s argument in the Affordable Care Act case, it remains an open question whether the Constitution still applies in the Roberts Court.

For decades, the Supreme Court has understood that our Constitution does not allow the fifty different states to set their own immigration policy, and for good reason. As the Court explained nearly 70 years ago, foreign nations do not take kindly to mistreatment of their citizens within the United States, and such mistreatment can have catastrophic consequences. “Experience has shown that international controversies of the gravest moment, sometimes even leading to war, may arise from real or imagined wrongs to another’s subjects inflicted, or permitted, by a government.”

Which explains why a bipartisan team of former foreign policy and national security officials, including former Secretary of State Madeleine Albright, former Defense Secretary William Cohen, and former Deputy Secretary of State John Negroponte, filed an amicus brief in the Supreme Court earlier this week warning the Court not to allow Arizona’ anti-immigrant SB 1070 law to stand. As the brief warns, Arizona’s actions “risk of embroiling the national government in disputes not of its making” — forcing the entire nation to live with the consequences of just one rogue state’s actions.

Moreover, the brief explains, these consequences have already begun:

S.B. 1070 rapidly generated significant friction between the U.S. and other countries and made them less willing to cooperate with the United States. Only a month after the law took effect, the President of Mexico expressed his country’s concern in a speech to the U.S. Congress,11 raised the issue in bilateral talks with President Obama, and addressed it in a joint press conference following their meeting. In June 2010, six Mexican governors cancelled their trips to Phoenix for an annual conference of U.S. and Mexican governors on border issues, leading Texas and Arizona to boycott the rescheduled conference venue in New Mexico. And unfavorable public attitudes in Mexico towards the United States jumped from only 27 percent to 48 percent shortly following enactment of the Arizona law—no minor consequence for the millions of Americans who travel to and conduct business with Mexico each year.

Arizona’s law has also produced ripple effects throughout Central and South America. It has damaged U.S. relations with Bolivia, Brazil, Columbia, Ecuador, El Salvador, Guatemala, Honduras, and Nicaragua, whose presidents and parliaments have issued statements criticizing the law. Both El Salvador and Mexico have also issued travel warnings or alerts to their citizens traveling to the U.S.

State immigration laws like S.B. 1070 also create a risk of retaliation against U.S. citizens residing or conducting business abroad. Indeed, in immigration matters, countries frequently respond to restrictions on their citizens by enacting reciprocal measures. For example, in 2004 Brazil singled out U.S. nationals for fingerprinting and photographing upon entry into Brazil to respond in equal measure to the U.S. fingerprinting of foreign nationals under the Enhanced Border Security and Visa Entry Reform Act of 2002.

In light of this week’s Affordable Care Act arguments, it remains an open question whether the Constitution and precedent still apply at all in the Supreme Court of the United States. If they still do — or if the justices care one bit about America’s ability to conduct responsible foreign relations — the justices need to heed these officials’ brief and strike down SB 1070.

Disclosure: Two of the signatories to this brief, former Deputy Secretary of Defense Rudy deLeon and former Assistant Secretary of Defense Larry Korb are employees of the Center for American Progress Action Fund.