Most observers agree that The Supreme Court appears ready to uphold key part of Arizona Immigration Law (SB 1070)
1 P R O C E E D I N G S
2 (10:07 a.m.)
3 CHIEF JUSTICE ROBERTS: We'll hear argument
4 this morning in Case 11-182, Arizona v. the United
5 States.
6 Mr. Clement.
7 ORAL ARGUMENT OF PAUL D. CLEMENT
8 ON BEHALF OF THE PETITIONERS
9 MR. CLEMENT: Mr. Chief Justice, and may it
10 please the Court:
11 The State of Arizona bears a
12 disproportionate share of the costs of illegal
13 immigration. In addressing those costs, Arizona
14 borrowed the Federal standards as its own, and attempted
15 to enlist State resources in the enforcement of the
16 uniform Federal immigration laws.
17 Notwithstanding that, the United States took
18 the extraordinary step of seeking a preliminary
19 injunction to enjoin the statute as impliedly preempted
20 on its face before it took effect. The Ninth Circuit
21 agreed with respect to four provisions, but only by
22 inverting fundamental principles of federalism.
23 The Ninth Circuit essentially demanded that
24 Arizona point to specific authorization in Federal
25 statute for its approach. But that gets mattersOfficial - Subject to Final Review
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1 backwards.
2 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. 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.
14 So, for example, 1373(c) specifically
15 requires that Federal immigration officials shall
16 respond to inquiries from State and local officials
17 about somebody's immigration status. 1373(a) goes even
18 further. That provision says that no Federal agency or
19 officer may prohibit or in any way restrict the ability
20 of State and local officers to communicate with Federal
21 immigration officers to ascertain somebody's immigration
22 status.
23 Indeed, if the DHS had --
24 JUSTICE SOTOMAYOR: Mr. Clement --
25 MR. CLEMENT: Yes.Official - Subject to Final Review
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1 JUSTICE SOTOMAYOR: -- could I interrupt,
2 and turning to 2(B), could you tell me what the State's
3 view is -- the Government proposes that it should be
4 read on its face one way, and I think the State is
5 arguing that there's a narrower way to read it. But am
6 I to understand that under the State's position in this
7 action, the only time that the inquiry about the status
8 of an individual rises is after they've had probable
9 cause to arrest that individual for some other crime?
10 MR. CLEMENT: That's exactly right, Justice
11 Sotomayor. So this only operates when somebody's been
12 essentially stopped for some other infraction, and then
13 at that point, if there's reasonable suspicion to try to
14 identify immigration status, then that can happen.
15 Of course, one of the things that --
16 JUSTICE SOTOMAYOR: Can I -- can I --
17 MR. CLEMENT: Sure.
18 JUSTICE SOTOMAYOR: -- just stop you there
19 just one moment?
20 That's what I thought. So presumably, I
21 think your argument is, that under any circumstance, a
22 police officer would have the discretion to make that
23 call. Seems to me that the issue is not about whether
24 you make the call or not, although the Government is
25 arguing that it might be, but on how long you detain theOfficial - Subject to Final Review
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1 individual, meaning -- as I understand it, when
2 individuals are arrested and held for other crimes,
3 often there's an immigration check that most States do
4 without this law.
5 And to the extent that the government wants
6 to remove that individual, they put in a warrant of
7 detainer.
8 This process is different. How is it
9 different?
10 MR. CLEMENT: Well, it's different in one
11 important respect, Justice Sotomayor, and that's why I
12 don't think that the issue that divides the parties is
13 only the issue of how long you can detain somebody.
14 Because I think the Federal Government takes
15 the rather unusual position that even though these stops
16 and these inquiries, if done on an ad hoc basis, become
17 preempted if they're done on a systematic basis --
You can read the entire testimony of Day 1 Testimony of the Battle over S.B 1070 here.
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