Instant Analysis: Arizona v. United States (Oral Argument)

April 25th, 2012

The transcript is here. Clement v. Verrilli. Round 2. (someone should make a Hayek-Keynes video for this).


Clement opens up with a long intro, and focuses that the burden to show preemption is on the federal government, not the state:

A State does not need to point to Federal 3 authorization for its enforcement efforts. Rather, the 4 burden is on the parties seeking to preempt a duly 5 enacted State law to point to some provision in 6 statutory law that does the preempting. Now, the United 7 States can’t really do that here, and the reason is 8 obvious. 9 There are multiple provisions of the Federal 10 immigration law that go out of their way to try to 11 facilitate State and local efforts to communicate with 12 Federal immigration officials in order to ascertain the 13 immigration status of individuals.

Sotomayor’s questions focused not on the fact that a person’s immigration status could be checked after he is detained based on probable cause, but on the length of that detention [Noteworthy, Sotomayor uses the word “illegal alien”–this is the term used in the statute]:

JUSTICE SOTOMAYOR: But I want to get to 22 how — assuming your position, that doing it on 23 a — there’s nothing wrong with doing it as it’s been 24 done in the past. Whenever anyone is detained, a call 25 could be made. What I see as critical is the issue of how long, and under — and when is the officer going to 2 exercise discretion to release the person? . . .

JUSTICE SOTOMAYOR: What happens if — this 13 is the following call — the call to the — to the 14 Federal Government. Yes, he’s an illegal alien. No, we 15 don’t want to detain him. 16 What does the law say, the Arizona law say, 17 with respect to releasing that individual?

MR. CLEMENT: But — but if what we’re 5 talking about is simply what happens then for purposes 6 of the Federal immigration consequences, the answer is 7 nothing. The individual at that point is released. . . . Now, I think in that circumstance, it’s very 19 clear what would happen, is an inquiry would be made to 20 the Federal officials that would say, do you want us to 21 transfer this person to your custody or hold this person 22 until you can take custody? And if the answer is no, 23 then that’s the end of it. That individual is released, 24 because there is no independent basis in that situation 25 for the State officer to continue to detain the individual at all.

RBG asks how can the state know if a person is removable–it is often a tricky question:

JUSTICE GINSBURG: But how would the State 3 officer know if the person is removable? I mean, that’s 4 sometimes a complex inquiry. 5 MR. CLEMENT: Well, Justice Ginsburg, I 6 think there’s two answers to that. One is, you’re 7 right, sometimes it’s a complex inquiry, sometimes it’s 8 a straightforward inquiry. It could be murder, it could 9 be a drug crime. But I think the practical answer to 10 the question is by hypothesis there is going to be 11 inquiry made to the Federal immigration authorities, 12 either the Law Enforcement Support Center or a 287(g) 13 officer. And presumably, as a part of that inquiry, 14 they can figure out whether or not this is a removable 15 offense or at least a substantially likely removable 16 offense.

Justice Kennedy asks whether a person could be detained for two weeks in order to make that determination of removeability:

JUSTICE KENNEDY: If it takes two weeks to 18 make that determination, can the alien be held by the 19 State for that whole period of time — 20

MR. CLEMENT: Oh, I don’t — 21

JUSTICE KENNEDY: — just under section 6? 22

MR. CLEMENT: I don’t think so, Your Honor, 23 and I think that, you know, what — in all of these 24 provisions, you have the Fourth Amendment backing up the 25 limits, and I think so —

1 JUSTICE KENNEDY: What — what would be the 2 standard? You’re the attorney for the alien, he — they 3 are going to hold him for two weeks until they figure 4 out whether this is a removable offense, and you say, 5 under the Fourth Amendment, you cannot hold for — what? 6 More than a reasonable time or — 7

MR. CLEMENT: Yes, ultimately, it’s a 8 reasonable inquiry. And I think that under these 9 circumstances what we know from the record here is that 10 generally the immigration status inquiry is something 11 that takes 10 or 11 minutes. I mean, so it’s not — 12 we’re not talking about something — or no more than 10 13 if it’s a 287(g) officer and roughly 11 minutes on 14 average if it’s the Law Enforcement Support Center.

Clement gave a similar response to a Justice Breyer hypo–all inquiries are backed by the Fourth Amendment.

Clement’s colloquy with his former boss, Justice Scalia, highlights why this case isn’t about what everyone thinks it is about–it is not about the 4th Amendment, racial profiling, or immigration law. It is about federal preemption.

JUSTICE SCALIA: Anyway, if this is a 19 problem, is it an immigration law problem? 20 MR. CLEMENT: It — 21

JUSTICE SCALIA: Or is it a Fourth Amendment 22 problem? 23

MR. CLEMENT: Justice Scalia, it is 24 neither — 25

JUSTICE SCALIA: Is the Government’s attack on this that it violates the Fourth Amendment? 2

MR. CLEMENT: No, of course the Federal 3 Government, that also has a lot of immigration arrests 4 that are subject to the Fourth Amendment, is not making 5 a Fourth Amendment claim here. And it’s neither an 6 immigration law concern or something that should be the 7 basis for striking down a statute on its face.

In a bizarre exchange, Breyer asks Clement if it would be OK to make a statement in an opinion (presumably his dissent?)

JUSTICE BREYER: All right. Can I make the 16 following statement in the opinion, and you will say 17 that’s okay. Imagine — this is imaginary. “We 18 interpret” — imagine — “we interpret Section 2(B) as 19 not authorizing or requiring the detention of any 20 individual under 2(B), either at the stop or in prison, 21 for a significantly longer period of time than that 22 person would have been detained in the absence of 2(B).” 23 Can I make that statement in an opinion, and 24 you’ll say, that’s right? 25

MR. CLEMENT: I think what you could say — JUSTICE BREYER: Can I say that? 2

MR. CLEMENT: I don’t think you can say just 3 that. 4 JUSTICE BREYER: No.

MR. CLEMENT: I think you can say something 6 similar, though. I think you probably could say, look, 7 this is a facial challenge. The statute’s never gone 8 into effect. We don’t anticipate that Section 2(B) 9 would elongate in a significant number of cases the 10 detention or the arrest. I think you could say that.

. . . And so I don’t think that this immigration 11 status check is likely to lead to a substantial 12 elongation of the stops or the detentions.

Justice Scalia asks if Arizona has to accept in its borders illegal aliens the feds are not interested in removing. Clement says no?!

JUSTICE SCALIA: You’ll concede that the — 10 that the State has to accept within its borders all 11 people who have no right to be there, that the Federal 12 Government has no interest in removing? 13

MR. CLEMENT: No, I don’t accept that, 14 Justice Scalia, but — 15 JUSTICE SCALIA: That’s all the statute — 16 and you call up the Federal Government, and te 17 Federal — yes, he’s an illegal immigrant, but that’s 18 okay with us. 19

MR. CLEMENT: Well — 20

JUSTICE SCALIA: And the State has no power 21 to close its borders to people who have no right to be 22 there? 23

MR. CLEMENT: Well, Justice Scalia, here’s 24 my response, which is all of this discussion, at least 25 as I’ve understood it, has been about 2(B) and to a lesser extent 6. 2 Now, section 3 of the statute does provide 3 an authority under State law to penalize somebody who 4 has violated essentially the Federal registration 5 requirement. So if that’s — as to that provision, 6 there would be a State authority, even under these 7 hypotheticals, to take action with respect to the 8 individual — 9

JUSTICE KENNEDY: I think — 10 MR. CLEMENT: — but not with respect to 11 the Federal — 12 JUSTICE KENNEDY: I think Justice Scalia’s 13 question was the — was the broader one, just as a 14 theoretical matter. Can we say, or do you take the 15 position that a State must accept within its borders a 16 person who is illegally present under Federal law? 17

MR. CLEMENT: Well, and I think — 18

JUSTICE KENNEDY: And that is by reason of 19 his alien — 20

MR. CLEMENT: And I think my answer to that 21 is no. I think the reason my answer is no has more to 22 do with our defense of section 3 and other provisions 23 than it does with respect to the inquiry and arrest 24 authority provisions, 2(B) and 6.

Alito gives a lethal hypo to Clement, and smacks him down:

MR. CLEMENT: Well, if I can just kind of 16 work back for a second. I mean, obviously, it’s a 17 pretty unusual circumstance where somebody produces an 18 out-of-state driver’s license, and that doesn’t dispel 19 reasonable suspicion for the officer; but, I’ll take the 20 hypo — 21

JUSTICE ALITO: Why would it dispel 22 reasonable suspicion if it’s — if the officer knows 23 it’s a state that issues driver’s licenses to aliens who 24 are not lawfully —

MR. CLEMENT: And that might be a situation where that’s the case, and then — then it wouldn’t 2 dispel the reasonable suspicion. But, say, in the 3 average case, I think it would.

Kennedy turned to whether Arizona’s policy ” stands as an obstacle to the accomplishment and execution of the full purposes

9 and objectives of Congress.”

 JUSTICE KENNEDY: But then the government on 19 this section is going to come and say, well, there may 20 be — this must be — this — the enforcement of this 21 statute, as Arizona describes it, will be in 22 considerable tension with our — with our basic 23 approach; isn’t that what I’m going to hear from the 24 government?

MR. CLEMENT: It may be what you’re going to hear, Justice Kennedy, but I don’t think you just take 2 the Federal government for its word on these things. 3 You know, it’s interesting, in DeCanas 4 itself, the SG said that that California statute was 5 preempted. And in DeCanas, this Court didn’t say, well, 6 you know, we’ve got this language from Hines, and we 7 have the SG tell us it’s preempted, that’s good enough 8 for us. They went beyond that, and they looked hard. 9 And what they did is they established that 10 this is an area where the presumption against preemption 11 applies. So, that seems one strike in our favor. 12 We have here a situation where there is an 13 express preemption provision, and it — it only 14 addresses the employer’s side of the ledger. So the 15 express preemption provision clearly doesn’t apply here. 16 So the only thing they have is this inference —

And–in a snipe at Nino–Sotomayor talks about the legislative history:

JUSTICE SOTOMAYOR: Well, for those of us 18 for whom legislative history has some importance, there 19 seems to be quite a bit of legislative history that 20 the — that the idea of punishing employees was raised, 21 discussed and explicitly rejected.

MR. CLEMENT: And here’s why I think, if you consider the 10 legislative history, for those who do, it really 11 supports us, because here’s what Congress confronted. I 12 mean, they started thinking about this problem in 1971. 13 They passed IRCA in 1986.

Justice Kennedy asks about a double-jeopardy challenge where a person is prosecuted for violating the federal and state laws:

JUSTICE KENNEDY: Would double prosecutions 19 be — suppose that an alien were prosecuted under 20 Federal law for violating basically the terms of 3, 21 could the States then prosecute him as well? 22

MR. CLEMENT: I think they could under 23 general double jeopardy principles and the dual 24 sovereignty doctrine. Obviously, if that was a 25 particular concern to you, that might be the basis as an 1 as-applied challenge if somebody was already prosecuted 2 under Federal law.


The SG didn’t even get to his argument before he was interrupted:

GENERAL VERRILLI: Mr. Chief Justice, and 8 may it please the Court: 9 CHIEF JUSTICE ROBERTS: Before you get into 10 what the case is about, I’d like to clear up at the 11 outset what it’s not about. No part of your argument 12 has to do with racial or ethnic profiling, does it? I 13 saw none of that in your brief. 14

GENERAL VERRILLI: That’s correct. 15

CHIEF JUSTICE ROBERTS: Okay. So this is 16 not a case about ethnic profiling. 17

GENERAL VERRILLI: We’re not making any 18 allegation about racial or ethnic profiling in the case. Mr. Clement is working hard this morning to 20 portray SB 1070 as an aid to Federal immigration 21 enforcement. But the very first provision of the 22 statute declares that Arizona is pursuing its own policy 23 of attrition through enforcement and that the provisions 24 of this law are designed to work together to drive 25 unlawfully present aliens out of the State. That is something Arizona cannot do because 2 the Constitution vests exclusive —

Sotomayor returns to Scalia’s question about whether Arizona has the power to exclude (the most essential stick, no?):

JUSTICE SOTOMAYOR: General, could you 4 answer Justice Scalia’s earlier question to your 5 adversary? He asked whether it would be the 6 Government’s position that Arizona doesn’t have the 7 power to exclude or remove — to exclude from its 8 borders a person who’s here illegally. 9

GENERAL VERRILLI: That is our position, 10 Your Honor. It is our position because the Constitution 11 vests exclusive authority over immigration matters with 12 the national government.

Scalia snips back and talks about the sovereignty of the state:

JUSTICE SCALIA: All that means, it gives 14 authority over naturalization, which we’ve expanded to 15 immigration. But all that means is that the Government 16 can set forth the rules concerning who belongs in this 17 country. But if, in fact, somebody who does not belong 18 in this country is in Arizona, Arizona has no power? 19 What does sovereignty mean if it does not include the 20 ability to defend your borders? 21

GENERAL VERRILLI: Your Honor, the Framers 22 vested in the national government the authority over 23 immigration because they understood that the way this 24 nation treats citizens of other countries is a vital 25 aspect of our foreign relations. The national government, and not an individual State — 2

JUSTICE SCALIA: But it’s still up to the 3 national government. Arizona is not trying to kick out 4 anybody that the Federal government has not already said 5 do not belong here. And the Constitution provides — 6 even — even with respect to the Commerce Clause — “No 7 State shall without the consent of Congress lay any 8 imposts or duties on imports or exports except,” it 9 says, “what may be absolutely necessary for executing 10 its inspection laws.” 11 The Constitution recognizes that there is 12 such a thing as State borders and the States can police 13 their borders, even to the point of inspecting incoming 14 shipments to exclude diseased material.

The Chief honed in on the SG’s argument that it is OK for the police, in an ad hoc fashion, to ask the feds about a person’s immigration status, but not in some kind of systematic fashion:

CHIEF JUSTICE ROBERTS: It seems an odd argument to say the Federal 14 agency has to answer the state’s question, but the state 15 can’t ask it. 16

GENERAL VERRILLI: Well, we’re not saying 17 the state can’t ask it in any individual case. We 18 recognize that section — 19

CHIEF JUSTICE ROBERTS: You think there are 20 individual cases in which the state can call the Federal 21 Government and say: Is this person here illegally? 22 GENERAL VERRILLI: Yes, certainly, but that 23 doesn’t make — 24

CHIEF JUSTICE ROBERTS: Okay. So doesn’t 25 that defeat the facial challenge to the Act?

GENERAL VERRILLI: No. I don’t think so, 2 Mr. Chief Justice, because the — I think the problem 3 here is in that — is in every circumstance as a result 4 of section 2(B) of the law, backed by the penalties of 5 section 2(H), the state official must pursue the 6 priorities that the state has set, irrespective of 7 whether they are helpful to or in conflict with the 8 Federal priorities. . . .

GENERAL VERRILLI: Well, if there’s a — if 8 there’s a state policy locked into law by statute, 9 locked into law by regulation, then we have a problem. 10 If it’s not

JUSTICE ALITO: That’s what I can’t 15 understand because your argument — you seem to be 16 saying that what’s wrong with the Arizona law is that 17 the Arizona legislature is trying to control what its 18 employees are doing, and they have to be free to 19 disregard the desires of the Arizona legislature, for 20 whom they work, and follow the priorities of the Federal 21 Government, for whom they don’t work.

Even Sotomayor had difficulty following this argument:

JUSTICE SOTOMAYOR: I’m sorry. I’m a little 12 confused. General, I’m terribly confused by your 13 answer. Okay? And I don’t know that you’re focusing in 14 on what I believe my colleagues are trying to get to.

Then the argument turned to what is really at issue–racial profiling:

GENERAL VERRILLI: I think there are three. 8 The first is the — the Hines problem of harassment. 9 Now, we are not making an allegation of 10 racial profiling; nevertheless, there are already tens 11 of thousands of stops that result in inquiries in 12 Arizona, even in the absence of S.B. 1070. It stands to 13 reason that the legislature thought that that wasn’t 14 sufficient and there needed to be more. 15 And given that you have a population in 16 Arizona of 2 million Latinos, of whom only 400,000 at 17 most are there unlawfully — 18

JUSTICE SCALIA: Sounds like racial 19 profiling to me. 20 GENERAL VERRILLI: And they’re — and given 21 that what we’re talking about is the status of being 22 unlawfully present — 23

JUSTICE SOTOMAYOR: Do you have the 24 statistics as to how many arrests there are and how 25 many — and what the — percentage of calls before the Official – Subject to Final Review Alderson Reporting Company 46 1 statute? 2 GENERAL VERRILLI: There is some evidence in 3 the record, Your Honor. It’s the — the Palmatier 4 declaration, which is in the Joint Appendix, was the — 5 he was the fellow who used the run the Law Enforcement 6 Support Center, which answers the inquiries. That — 7 that declaration indicates that in fiscal year 2009, 8 there were 80,000 inquiries and — 9

JUSTICE SCALIA: What does this have to do 10 with Federal immigration law? I mean, it may have to do 11 with racial harassment, but I thought you weren’t 12 relying on that. 13


JUSTICE SCALIA: Are you objecting to 15 harassing the — the people who have no business being 16 here? Is that — surely you’re not concerned about 17 harassing them. They have been stopped anyway, and all 18 you’re doing is calling up to see if they are illegal 19 immigrants or not. 20 So you must be talking about other people 21 who have nothing to do with — with our immigration 22 laws. Okay? Citizens and — and other people, right?

Tea Party Rally in One First Street?

The Chief summed up his view pithily:

CJ: It seems to me that the Federal Government 3 just doesn’t want to know who is here illegally or not. 4

GENERAL VERRILLI: No, I — I don’t think 5 that’s right. I think we want to be able to cooperate 6 and focus on our priorities.

And the SG made a law clerk funny, that didn’t get any laughs:

I mean, I think it’s as though, if I can use 7 an analogy, if you ask one of your law clerks to bring 8 you the most important preemption cases from the last 10 9 years, and they rolled in the last — the last hundred 10 volumes of the U.S. Reports and said, well, they are in 11 there. That — that doesn’t make it — 12

CHIEF JUSTICE ROBERTS: What if they just 13 rolled in Whiting? 14 (Laughter.) 15 CHIEF JUSTICE ROBERTS: That’s a pretty good 16 one.

And the most dreaded words when arguments aren’t going well and your time is up:

Excuse me. I see my —
21 CHIEF JUSTICE ROBERTS: No, keep going.

This bit was interesting. There is no way for the Feds to verify a person is actually a citizen if they do not possess a Passport:

Today, if you use the names Sonya Sotomayor, 4 they would probably figure out I was a citizen. But 5 let’s assume it’s John Doe, who lives in Grand Rapids. 6 So they are legal. Is there a citizen database? 7

GENERAL VERRILLI: The citizen problem is 8 actually a significant problem. There isn’t a citizen 9 database. If you — 10

JUSTICE SOTOMAYOR: I’m sorry, there is or 11 there isn’t? 12

GENERAL VERRILLI: There is not. If you 13 have a passport, there is a database if you look 14 “passports.” So you could be discovered that way. But 15 otherwise there is no reliable way in the database to 16 verify that you are a citizen unless you are in the 17 passport database. So you have lots of circumstances in 18 which people who are citizens are going to come up no 19 match. There’s no — there is nothing suggesting in the 20 databases that they have an immigration problem of any 21 kind, but there’s nothing to — 22

JUSTICE SOTOMAYOR: So if you run out of 23 your house without your driver’s license or 24 identification and you walk into a park that’s closed 25 and you’re arrested, you — they make the call to this agency. You could sit there forever while they — 2


JUSTICE SOTOMAYOR: Figure out if you’re — 4

GENERAL VERRILLI: While I’m at it, there is

Oy Nino made a deportation joke. Seriously.

JUSTICE SCALIA: Well, can’t you avoid that 25 particular foreign relations problem by simply deporting 1 these people? Look, free them from the jails — 2

GENERAL VERRILLI: I really think — 3

JUSTICE SCALIA: And send them back to the 4 countries that are — that are objecting. 5

GENERAL VERRILLI: This is a — 6 JUSTICE SCALIA: What’s the problem with 7 that? . . .

JUSTICE SCALIA: So we have to — we have to 5 enforce our laws in a manner that will please Mexico. 6 Is that what you’re saying? 7

GENERAL VERRILLI: No, Your Honor, but what 8 it does — no, Your Honor, I’m not saying that — 9

JUSTICE SCALIA: Sounded like what you were 10 saying.

Phew, its done.

CHIEF JUSTICE ROBERTS: Thank you, 8 Mr. Clement, General Verrilli. Well argued on both 9 sides. Thank you.