WASHINGTON -- Justices of the nation's high court indicated Wednesday they may allow Arizona to implement the most controversial part of its 2010 immigration law.
The justices repeatedly questioned the contention of U.S. Solicitor General Donald Verrilli that the state has no right to require police officers to question the immigration status of someone they have stopped if they have "reasonable suspicion'' that person is in this country illegally.
Justice Samuel Alito pointed out that nothing in federal law precludes an officer, on his or her own, from calling federal immigration authorities to make such a check. In fact, he noted, federal law mandates that immigration officials respond.
The only difference, he said, is this takes what is permissive and makes it mandatory.
"You seem to be saying that what's wrong with the Arizona law is that the Arizona Legislature is trying to control what its employees are doing, and they have to be free to disregard the desires of the Arizona Legislature, for whom they work and follow the priorities of the federal government, for whom they don't work,'' Alito said.
Verrilli argued the mandate forces federal officials to take time that might be better spent focusing on inquiries from around the country about people who may truly be dangerous. Anyway, he said, it also leads to the possibility of harassment.
But the challenge of the Obama administration to SB 1070 is not based on a contention of racial profiling. Any such claim is premature as the law never remains on hold while its legality is debated.
"Sounds like racial profiling to me,'' quipped Justice Antonin Scalia.
One issue that did seem to concern the justices is exactly what happens when someone is stopped. They noted that federal law and court rulings limit the amount of time police can detain someone absent evidence of a crime.
Paul Clement, the private attorney hired by Gov. Jan Brewer to represent the state, said such inquiries take no more than 11 minutes. Verrilli said that's only half true: It takes 11 minutes after someone has answered the phone -- after what could be 60 minutes on hold.
But Clement said even if immigration officials confirm someone is in the country illegally, that does not lead to someone being detained. He told the justices if federal agents say they're not interested, that's the end of the matter and the person is released.
"It is not an effort to enforce federal law,'' said Chief Justice John Roberts told Verrilli.
"It's an effort to let you know about violations of federal law,'' he continued. "Whether or not to enforce them is still entirely up to you.''
Verrilli said that ignores the other three challenged sections of Arizona law.
One makes it a state crime to be in this country illegally without possessing certain federal documents. Another lets state and local police arrest someone who has committed some offense which makes them subject to deportation under federal law. A third criminalizes being an undocumented person seeking work.
Verrilli told the justices all three are areas the federal government clearly has reserved for itself and has spelled out its own penalties, making them off limits to state action. He said it is that initial questioning by state and local police that SB 1070 mandates which leads to the infringement on federal authority in those other areas.
He said that's borne out in the wording of SB 1070 which says the goal is "to make attrition through enforcement the public policy of all state and local governments in Arizona.'' It also says the provisions "are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.''
That, Verrilli said, proves that the section on stopping and questioning has to be seen as part of the whole scheme, a scheme he said is illegal.
Clement said the court needs to view SB 1070 through the eyes of those affected.
"The state of Arizona bears a disproportionate share of the costs of illegal immigration,'' he said. Clement told the justices that all SB 1070 does is incorporate what already is illegal under federal law and add its own resources to help.
Verrilli acknowledged the federal government has limited resources and prioritizes who to pursue for violating federal immigration law. But he said the failure of Immigration and Customs Enforcement to go after every illegal immigrant did not give the states license to step in under the premise they are simply helping, saying only the federal government gets to determine those priorities.
The justices were not so sure.
Scalia pointed out that it is both a federal and state crime to rob a bank.
"Does the (U.S.) Attorney General come in and say, you know, we might really only want to go after the professional bank robbers?'' he asked, and not to prosecute an "amateur bank robber.'' Scalia asked Verrilli if the state could bring its own charges against that amateur.
Verrilli conceded the point but said immigration law is different.
One thing that makes it different, he said, is the possibility of the state using its own laws to have "mass incarceration'' of the approximately 400,000 illegal immigrants living in the state, people who have not been a priority of the federal government to pursue.
While Brewer did not speak during the hearing, she did not dispute that possibility in comments afterwards.
"I would presume there would be mass incarcerations if they had broken the law on the first offense,'' she said. "If they're breaking the law, there's that possibility.''
Verrilli said such mass incarceration could lead to foreign relations problems, if for no other reason than it might affect how other governments deal with U.S. citizens abroad.
Scalia said there's a simple answer to that: Deport them back to their home country.
Verrilli said that could lead to international problems with Mexico, which is where the majority of those sent back come from, because that country's government cooperates with ours on various border issues.
"So we have to enforce our laws in a manner that will please Mexico, is that what you're saying?'' Scalia shot back.
"I'm not saying that,'' Verrilli responded.
"Sounded like what you were saying,'' Scalia said.
Scalia said the question may come down to state sovereignty.
He said SB 1070 could be read as regulating illegal immigrants, not as regulating immigration which is a federal issue.
"If, in fact, somebody who does not belong in this country is in Arizona, Arizona has no power?'' he asked Verrilli. "What does sovereignty mean if it does not include the ability to defend your borders?''
Verrilli said there has to be a single national policy on immigration and deportation. Otherwise, he said, states like Arizona could end up taking actions that interfere with other federal issues, like foreign policy.
"Arizona is not trying to kick out anybody that the federal government has not already said do not belong here,'' Scalia responded.
Brewer, in her post-hearing comments, lashed out at the Obama administration for challenging the Arizona law, saying that decision was more about politics than the law.
"This is an election year,'' she said, saying the lawsuit, filed in 2010, was "staged'' with this year's presidential race in mind.
"They are playing to the Latino community,'' Brewer said. "They're trying to use that scare card, if you will, to generate support.''
But Brewer, who inherited the office in 2009 when Janet Napolitano resigned, brushed aside the question of whether she signed SB 1070 in 2010 to ensure she would win a full term as governor that year.
"I signed the bill after reading it and amending it as it went through the Legislature to make sure that it absolutely did what we wanted it to do, which is to address the terrible situation that Arizona was facing ... knowing that it would be a lightning rod in some arenas, that the race card would be thrown out,'' she said.
Brewer said the legislation -- at least the revised version approved several weeks after she signed the initial bill -- specifically prohibits the use of race as a factor in determining who to question.
ProFreedom Gal posted at 1:41 pm on Sun, Jun 10, 2012.
Should be all our states suing the fed govt. Certainly hope our supreme court actually declares for our rights - state and individual. They certainly can see how the majority of citizens feel about illegal immigration.
quietgardens posted at 1:39 pm on Tue, May 1, 2012.
There is a way to come to America, legally. We have to know who comes to America, especially after 9-11..
Rational Human posted at 12:50 pm on Tue, May 1, 2012.
Arizona's legislature passed the law two years ago. Gov. Jan Brewer signed it, and the ink on the darned thing was barely dry before the Obama administration hauled Arizona into court.
The statute allows, among other things, for Arizona law enforcement personnel to inquire about the immigration status of anyone legally stopped in the state.
This didn't sit well with liberals, many Democrats, so-called progressives, America's open-borders crowd -- who advocate open borders for anybody not white -- and those who think our immigration policy should be dictated by Mexico. The naysayers screamed racism, their first -- and, in many cases, last and only -- card in the deck.
The cry of "racism" is also the first, last and only refuge of those who have no legitimate argument.
So Attorney General Eric Holder, no doubt at the behest of his feckless leader, President Obama, hauled Arizona into court and left Verrilli with the thankless task of defending the administration's position.
Verrilli must have known his day would go badly when an Obama appointee, Justice Sonia Sotomayor, told him, "Your argument -- that this systematic cooperation [between Arizona and the federal government] is wrong -- is not selling very well. Why don't you come up with something else?"
The "something else" that occurred to Verrilli was to whine about how SB 1070 might lead to "mass incarceration," according to news reports. That prompted this retort from Justice Anthony Kennedy.
"So you're saying the government has a legitimate interest in not enforcing its own laws?"
Kennedy cut straight to the chase with that question. It's not the government that has a legitimate interest in not enforcing immigration laws; it's the Obama administration, which hauled Arizona into court for one reason, and one reason only: to get Latino votes.
Scalia sees right through such shameless, spineless pandering. His questions showed that he treats the Obama administration's lawsuit against Arizona with the contempt it deserves.
Here are some of the questions Scalia put to either Verrilli, attorney Paul Clement, who argued for the state of Arizona, or both:
* "But if, in fact, someone who does not belong in this country is in Arizona, Arizona has no power? What does sovereignty mean if it does not include the ability to defend your borders?"
* "The state has no power to close its borders to people who have no right to be there?"
* "Are you objecting to harassing the people who have no business being here? Surely you're not concerned about harassing them?"
* "We have to enforce our laws in a manner that will please Mexico?"
Liberals, many Democrats, so-called progressives, America's open-borders crowd and those who think our immigration policy should be dictated by Mexico have their noses way out of joint about Scalia's questions.
One of them is Washington Post columnist Dana Milbank, who's in a snit because Scalia's questions weren't, in Milbank's view, "fair and impartial."
It occurs to me that justices should be fair and impartial most of the time, but not at all when there is a case before them that is a waste of taxpayers' money and the justices' time. And that's doubly true when the case was brought by an administration not to seek justice, but to cravenly pander to a particular ethnic or racial group for its votes.
What's unfair is that Arizona was hauled into court in the first place. Scalia may have realized that and asked his questions accordingly.
Rational Human posted at 11:58 am on Sun, Apr 29, 2012.
It's like Chief Justice Roberts said: "...It seems to me the federal government just doesn't want to know who is here illegally."
AZ_Resident posted at 8:59 am on Fri, Apr 27, 2012.
It's about time this comes to the forefront, hopefully the Supreme Court will set precedence over this hearing and finally get the ball rolling in the right direction whereby being here illegally means you're subject to arrest and deportation like its supposed to be.
Accuracy posted at 12:07 pm on Thu, Apr 26, 2012.
U.S. Supreme Court justices strongly implied they're leaning toward upholding the rights of Arizona and other states be allowed to target illegal immigrants.
Unexpectedly, liberal Justice Sonia Sotomayor, the first Hispanic on the high court, also seemed skeptical of Obama administration's arguments.
"You can see it's not selling very well," Justice Sotomayor told the solicitor general. "Why don't you try to come up with something else"
The court's decision will directly affect the presidential campaign and Hispanic voters this year . . . So, Democrat Sen. Chuck Schumer, said he'll pass Democrats' legislation (through Congress) that will block other states from passing their own immigration laws.
k33j88 posted at 7:21 am on Thu, Apr 26, 2012.
Why don't you 'libs go to the border to offer some water, cash, and a road map. I'm sure the survivors of murder, rape and assaults would appreciate your humane efforts. Why are the readers of the EVT only offered a handful of reporters opinions? Maybe they're hand-picked for their underlying agendas?
Pro AZ posted at 3:47 am on Thu, Apr 26, 2012.
WHAT a confusing and poorly written article! THE ARTICLE IN THE REPUBLIC IS FAR MORE RELEVANT, and is easy and clear in its reading, and has far more facts and in it. When you read this article here, it is confusing and twists the facts, likely on purpose no doubt, to make it almost sound the opposite of what happened today. Some of the things written here are exactly THE OPPOSITE of what was said by the justices. The AZ Republic article has hundreds of comments, while this paper has almost none. Nice try Tribune! LOL!
Go to the write up in the AZ Republic folks and find out the truth of what was said today. This author here obviously has an agenda and wants to confuse. How pathetic. This is the last time I read this paper.
Rational Human posted at 7:55 pm on Wed, Apr 25, 2012.
"Verrilli said there has to be a single national policy on immigration and deportation. Otherwise, he said, states like Arizona could end up taking actions that interfere with other federal issues, like foreign policy."
So, what Mexico and the rest of the countries below us think of us is more important than our immigration laws? Importing poverty when so many of us are without jobs is so important to the democrats staying in power that they will do anything to us so that they can stay in power? Remember that in the next election White people. Hispanics will, and the Obamanation has the entire Black race in his pocket even though his policies regarding immigration have harmed them the most.
samkat posted at 6:57 pm on Wed, Apr 25, 2012.
Any inroads we make in reducing illegal immigration is a plus.
Leon Ceniceros posted at 4:45 pm on Wed, Apr 25, 2012.
Wow....double...Wow.
This sure ain't the way it was supposed to go according to the Liberal/Progressives on the PBS-ASU Channel 8 "HORIZON" and "HORIZONTE" TV Programs. They have been saying for more than a year (along with every Local TV Channel Commentator and our Local Newspaper Editors) that the Justices would ..."rip Arizona apart from limb to limb" and that Governor Jan Brewer would have to ..."crawl back on her hands and knees" for having the audacity to go against Barack Hussein Obama and the Democrats.
So much for the Left-Wing Pundits........even if some of SB 1070 gets approved to go into Law...that will be a win for the Arizona Republicans (or should I say....ARIZONA PATRIOTS).
GOD BLESS RUSSELL PEARCE (boy did he kick New York Democrat Senator Shummer's keester at the Senate Meeting).
chatmandu002 posted at 3:52 pm on Wed, Apr 25, 2012.
I believe justice Kennedy will flip to the left side and it will be a 4-4 vote with SB-1070 mostly shot down. Not the decision I want to see.
Dale Whiting posted at 2:23 pm on Wed, Apr 25, 2012.
Quietgardens,
These eggs don't hatch until around the 4th of July. It's premature to count chicks!
quietgardens posted at 1:03 pm on Wed, Apr 25, 2012.
Wow! Nobody has commented on this one yet? This will be an interesting event as it unfolds. It is nice to hear that some reporter, Howard Fischer, gave an extensive report on what was said by several of the justices. I will be watching eagerly!