Transcript: Supreme Court oral argument of Paul Clement on Arizona’s immigration law

Oral argument of Paul D. Clement on behalf of the petitioners in Arizona v. United States on April 25, 2012:

MR. CLEMENT: Mr. Chief Justice, and may it please the Court:

The State of Arizona bears a disproportionate share of the costs of illegal immigration. In addressing those costs, Arizona borrowed the Federal standards as its own, and attempted to enlist State resources in the enforcement of the uniform Federal immigration laws.

Notwithstanding that, the United States took the extraordinary step of seeking a preliminary injunction to enjoin the statute as impliedly preempted on its face before it took effect. The Ninth Circuit agreed with respect to four provisions, but only by inverting fundamental principles of federalism.

The Ninth Circuit essentially demanded that Arizona point to specific authorization in Federal statute for its approach. But that gets matters backwards.

A State does not need to point to Federal authorization for its enforcement efforts. Rather, the burden is on the parties seeking to preempt a duly enacted State law to point to some provision in statutory law that does the preempting. Now, the United States can’t really do that here, and the reason is obvious.

There are multiple provisions of the Federal immigration law that go out of their way to try to facilitate State and local efforts to communicate with Federal immigration officials in order to ascertain the immigration status of individuals.

So, for example, 1373(c) specifically requires that Federal immigration officials shall respond to inquiries from State and local officials about somebody’s immigration status. 1373(a) goes even further. That provision says that no Federal agency or officer may prohibit or in any way restrict the ability of State and local officers to communicate with Federal immigration officers to ascertain somebody’s immigration status.

Indeed, if the DHS had —



JUSTICE SOTOMAYOR: — could I interrupt, and turning to 2(B), could you tell me what the State’s view is — the Government proposes that it should be read on its face one way, and I think the State is arguing that there’s a narrower way to read it. But am I to understand that under the State’s position in this action, the only time that the inquiry about the status of an individual rises is after they’ve had probable cause to arrest that individual for some other crime?

MR. CLEMENT: That’s exactly right, Justice Sotomayor. So this only operates when somebody’s been essentially stopped for some other infraction, and then at that point, if there’s reasonable suspicion to try to identify immigration status, then that can happen. Of course, one of the things that —



JUSTICE SOTOMAYOR: — just stop you there just one moment? That’s what I thought. So presumably, I think your argument is, that under any circumstance, a police officer would have the discretion to make that call. Seems to me that the issue is not about whether you make the call or not, although the Government is arguing that it might be, but on how long you detain the individual, meaning — as I understand it, when individuals are arrested and held for other crimes, often there’s an immigration check that most States do without this law.

And to the extent that the government wants to remove that individual, they put in a warrant of detainer.

This process is different. How is it different?

MR. CLEMENT: Well, it’s different in one important respect, Justice Sotomayor, and that’s why I don’t think that the issue that divides the parties is only the issue of how long you can detain somebody.

Because I think the Federal Government takes the rather unusual position that even though these stops and these inquiries, if done on an ad hoc basis, become preempted if they’re done on a systematic basis —

JUSTICE SOTOMAYOR: No, I understand that’s their argument. I can question them about that.

MR. CLEMENT: Okay. But — so that’s —

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

MR. CLEMENT: And with respect, I don’t think section 2(B) really speaks to that, which is to say, I don’t think section 2(B) says that the systematic inquiry has to take any longer than the ad hoc inquiry.

And, indeed, section 2 — in one of its provisions — specifically says that it has to be implemented in a way that’s consistent with Federal, both immigration law and civil rights law.

So, there —

JUSTICE SOTOMAYOR: What happens if — this is the following call — the call to the — to the Federal Government. Yes, he is an illegal alien. No, we don’t want to detain him.

What does the law say, the Arizona law say, with respect to releasing that individual?

MR. CLEMENT: Well, I don’t know that it speaks to it in specific terms, but here’s what I believe would happen, which is to say, at that point, then, the officer would ask themselves whether there’s any reason to continue to detain the person for State law purposes. I mean, it could be that the original offense that the person was pulled over needs to be dealt with or something like that.

JUSTICE SOTOMAYOR: I’m putting all of this outside of —

MR. CLEMENT: But — but if what we’re talking about is simply what happens then for purposes of the Federal immigration consequences, the answer is nothing. The individual at that point is released.

And that, I think, can be very well illustrated by section 6 — I don’t want to change the subject unnecessarily, but there is arrest authority for somebody who has committed a public offense, which means that it’s a crime in another State and in Arizona, but the person can’t be arrested for that offense presumably because they have already served their sentence for the offense; and then there is new arrest authority given to the officer to hold that person if they are deportable for that offense.

Now, I think in that circumstance, it’s very clear what would happen, is an inquiry would be made to the Federal officials that would say, do you want us to transfer this person to your custody or hold this person until you can take custody? And if the answer is no, then that’s the end of it. That individual is released, because there is no independent basis in that situation for the State officer to continue to detain the individual at all.

JUSTICE GINSBURG: But how would the State officer know if the person is removable? I mean, that’s sometimes a complex inquiry.

MR. CLEMENT: Well, Justice Ginsburg, I think there’s two answers to that. One is, you’re right, sometimes it’s a complex inquiry, sometimes it’s a straightforward inquiry. It could be murder, it could be a drug crime. But I think the practical answer to the question is by hypothesis there is going to be inquiry made to the Federal immigration authorities, either the Law Enforcement Support Center or a 287(g) officer. And presumably, as a part of that inquiry, they can figure out whether or not this is a removable offense or at least a substantially likely removable offense.

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

MR. CLEMENT: Oh, I don’t —

JUSTICE KENNEDY: — just under section 6?

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

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

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

JUSTICE BREYER: How do they have — well, the same question, but — but I’m trying to think of examples. Example one is the person is arrested. Now, it says any person who is arrested shall have the person’s immigration status determined before the person is released. So I wonder if they have arrested a citizen, he’s Hispanic-looking, he was jogging, he has a backpack, he has water in it and Pedialyte, so they think, oh, maybe this is an illegal person. It happens he’s a citizen of New Mexico, and so the driver’s license doesn’t work.

And now they put him in jail. And are you — can you represent to us — I don’t know if you can or not — can you represent to us he will not stay in jail in detention for a significantly longer period of time than he would have stayed in the absence of section 2(B)? Do you want to represent that or not?

MR. CLEMENT: I don’t want to represent that —

JUSTICE BREYER: All right. Now, if you cannot represent that — and I’m not surprised you don’t want to — I mean, I don’t know —

MR. CLEMENT: Sure, sure. But what I can represent —


MR. CLEMENT: — is that he’s not going to be detained any longer than the Fourth Amendment allows.



JUSTICE BREYER: But the Fourth Amendment — for — I mean, that’s another question. I don’t know how long the Fourth Amendment allows. I don’t know on that. There probably is a range of things. But we do know that a person ordinarily, for this crime, X, would have been released after a day. Oh, you know, the Fourth Amendment would have allowed more. So now what I want to know is what in practice will happen?

From your representation, I think that there will be a significant number of people — some of whom won’t be arrested; it takes 11 minutes for some. For citizens, it might take two hours, it might take two days. Okay. There will be a significant number of people who will be detained at the stop, or in prison, for a significantly longer period of time than in the absence of 2(B). Is that a fair conclusion?

MR. CLEMENT: I don’t think it is, Justice Breyer, and here’s why it’s not. Because even though there certainly are situations where State authorities will arrest somebody and then release them relatively rapidly, they generally don’t release somebody until they can nail down their identity and whether or not they are likely to come to a court hearing at a subsequent —

JUSTICE SCALIA: Anyway, if this is a problem, is it an immigration law problem?


JUSTICE SCALIA: Or is it a Fourth Amendment problem?

MR. CLEMENT: Justice Scalia, it is neither —

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

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

JUSTICE BREYER: That’s a different argument —

MR. CLEMENT: But I do want to — but I do want to be responsive and make the point that I think the factual premise that this is going to — 2(B) is going to lead to the elongation of a lot of arrests is not true.

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

MR. CLEMENT: I think what you could say —

JUSTICE BREYER: Can I say that?

MR. CLEMENT: I don’t think you can say just that.


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

And the reason is, as I indicated, it’s something that happens even without this law that, when you arrest somebody, and there are some offenses that are — you can arrest and release under State law, but before you release the individual, you generally want to ascertain that that individual is going to show up at the hearing, and that’s what really distinguishes those cases where there’s arrest and release from those cases where there’s arrest and you book somebody.

Now, here’s the other reason why I don’t think factually this is going to elongate things. Because already in a significant number of booking facilities in Arizona, you already have the process that people are systematically run through immigration checks when they are booked as part of the booking process.That’s reflected in the record here in the Maricopa County system, that that’s done by a 287(g) officer as a matter of routine.

The Federal Government doesn’t like this statute, but they are very proud of their Secure Communities program. And their Secure Communities program also makes clear that everybody’s that’s booked at participating facilities is — eventually has their immigration status checked.

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

JUSTICE SOTOMAYOR: I want to make sure that I get a clear representation from you. If on a call to
the Federal agency, the agency says, we don’t want to detain this alien, that alien will be released or —
unless it’s under 6, is what you’re telling me. Or under 6, 3, or some — one other of Arizona’s immigration clauses.

MR. CLEMENT: Exactly. Obviously, if this is somebody who was going, you know, 60 miles an hour in a 20-mile-an-hour school zone or something, they may decide wholly apart from the immigration issues, that this is somebody they want to bring back to the station.

But for the purposes of once they make the contact with Federal immigration officials, if the Federal
immigration officials say, look, we have no interest in removing this person, we have no interest in prosecuting this person under the Federal criminal provisions, then that’s the end of the Federal case —

JUSTICE SOTOMAYOR: All right. Then tell me —

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

MR. CLEMENT: No, I don’t accept that, Justice Scalia, but —

JUSTICE SCALIA: That’s all the statute — and you call up the Federal Government, and the Federal — yes, he’s an illegal immigrant, but that’s okay with us.


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

MR. CLEMENT: Well, Justice Scalia, here’s my response, which is all of this discussion, at least as I’ve understood it, has been about 2(B) and to a lesser extent 6.

Now, section 3 of the statute does provide an authority under State law to penalize somebody who has violated essentially the Federal registration requirement. So if that’s — as to that provision, there would be a State authority, even under these hypotheticals, to take action with respect to the individual —


MR. CLEMENT: — but not with respect to the Federal —

JUSTICE KENNEDY: I think Justice Scalia’s question was the — was the broader one, just as a theoretical matter. Can we say, or do you take the position that a State must accept within its borders a person who is illegally present under Federal law?

MR. CLEMENT: Well, and I think —

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

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

JUSTICE ALITO: Well, before you move on to the registration requirement, could I take you back to an example that’s similar to the one that Justice Breyer was referring to.

Let’s someone — let’s say someone who is a citizen and a resident of New Mexico, has a New Mexico driver’s license, drives across the border, is stopped for speeding, not 60 miles an hour in a 20-mile zone, but 10 miles over the speed limit on an interstate. And the officer, for some reason, thinks that this person may be an illegal alien. How would that work out? If you do the records check, you’re not going to get anything back, right, because the person is a citizen? So what — where would the officer take it from there?

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

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

MR. CLEMENT: And that might be a situation where that’s the case, and then — then it wouldn’t dispel the reasonable suspicion. But, say, in the average case, I think it would. They would then go further. And then they would then make the inquiry to the Federal officials. And then if — because of the fact that the individual actually is a citizen or something like that, then what would happen is at some point you’d get to the end of a permissible Terry stop, and the officer would release the individual.

Now, it might not be the end of the matter, because, of course, you know, they still have the name, they still have the ability to collect that information and try to continue the check as they move forward, taking down the information on the New Mexico driver’s license.

But I think the important thing is that, you know, this statute doesn’t authorize them to detain the individual, certainly beyond the — the Fourth Amendment limits, and it really doesn’t authorize them to do anything that the official couldn’t do on an ad hoc basis without the statute.

Now it does do —

JUSTICE ALITO: That may be the case, and I would like to ask General Verrilli about that; but, under the Fourth Amendment, presumably, if the officer can arrest, the state officer can arrest a person simply on the ground that the person is removable, which is what the Office of Legal Counsel opined some years ago, then presumably the officer could continue to detain that individual that I mentioned until they reached a point where the Terry stop becomes an arrest, at which time they would have to have probable cause. But if they had probable cause to believe the person was removable, then they could hold the person, presumably, until the person’s status was completely verified; isn’t that correct?

MR. CLEMENT: I think that’s correct, Your Honor.

Now, as we read section 6, because there’s a pre-existing definition of public offense in Arizona law, we don’t think this is kind of the full Office of Legal Counsel situation, where you have broad arrest authority for removable individuals. This is a relatively narrow slice of additional arrest authority that happens to give arrest authority for people that seem to fit the Federal government’s priority, because it really is going to apply to criminal aliens. But I don’t — I don’t take any issue with what you’re saying. I do think, though, it’s important to understand that 2(B) really doesn’t give the officer an authority he didn’t otherwise have.

It does do one thing that’s very important, though, which it does have the effect of overriding local policies that actually forbade some officers from making those communications and — because that’s one of the primary effects of 2(B). It just shows how difficult the government’s preemption argument is here, because those kind of local policies are expressly forbidden by Federal statute. 1373(a) and 8 U.S.C. 1644 basically say that localities can’t have those kind of sanctuary laws.

And so, one effect that 2(B) has is on a state level it basically says, look, you can’t have local officers telling you not to make those inquiries, you must have those inquiries.

JUSTICE SOTOMAYOR: Counsel, could — does section 6 permit an officer to arrest an individual who has overstayed a visitor’s visa by a day? They are removable, correct?

MR. CLEMENT: They are removable. I don’t think they would have committed a public offense — absent a very unusual situation, I don’t think they would have committed a public offense under Arizona law So I don’t think there actually would be arrest authority in that circumstance, as Justice Alito’s question has —

JUSTICE SOTOMAYOR: What is the definition of public offense?

MR. CLEMENT: A public offense definition — it’s actually — it’s a petition appendix — well, I’m sorry.

The definition is basically that it’s something that is a crime in another jurisdiction and also a crime in Arizona. And so, what makes this kind of anomalous is, normally, if something is a crime in Arizona, there’s arrest authority for that directly. So what this really captures is people who have committed a crime are no longer arrestable for the crime because they have served their sentence or some other peculiarity, but they are nonetheless removable because of the crime.

CHIEF JUSTICE ROBERTS: Counsel, maybe it’s a good time to talk about some of the other sections, in particular section 5(C). Now, that does seem to expand beyond the Federal government’s determination about the types of sanctions that should govern the employment relationship.

You talk about supply and demand. The Federal government, of course, prohibits the employment, but it also imposes sanctions with respect to application for work. And the State of Arizona, in this case, is imposing some significantly greater sanctions.

MR. CLEMENT: Well, it’s certainly imposing different sanctions. I mean, you know, it’s a little bit — kind of hard to weigh the difference between removability, which is obviously a pretty significant sanction for an alien, and the relatively modest penalties imposed by section 5(C). But I take the premise that 5(C) does something that there is no direct analog in Federal law. But I — but that’s not enough to get you to preemption, obviously.

And one of the things that makes 5(C), it seems to us, a weak case for preemption is that it only targets employment that is expressly forbidden by Federal law. And so, then we look at, you know, essentially the government is reduced to arguing that because in 1986 when Congress passed IRCA, it only focused on the employer’s side of the equation and didn’t, generally speaking, impose restrictions on employees, that somehow they are going to draw a preemptive inference from that.


JUSTICE KENNEDY: Would you agree that — would you accept as a working hypothesis that we can begin with the general principle that the Hines v. Davidowitz language controls here, and we’re going to ask our principal — our primary function is to determine whether, under the circumstances of this particular case, Arizona’s law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress? Is that an acceptable test from your standpoint?

MR. CLEMENT: I think it’s an acceptable test. I mean, Justice Kennedy, you know, there obviously have been subsequent cases, including DeCanas and Whiting, that give additional shape and color to that test, but I don’t have any — I don’t have any real quarrel with that test.

And here’s why I don’t think that —

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

MR. CLEMENT: It may be what you’re going to hear, Justice Kennedy, but I don’t think you just take the Federal government for its word on these things.

You know, it’s interesting, in DeCanas itself, the SG said that that California statute was preempted. And in DeCanas, this Court didn’t say, well, you know, we’ve got this language from Hines, and we have the SG tell us it’s preempted, that’s good enough for us. They went beyond that, and they looked hard.

And what they did is they established that this is an area where the presumption against preemption
applies. So, that seems one strike in our favor. We have here a situation where there is an express preemption provision, and it — it only addresses the employer’s side of the ledger. So the express preemption provision clearly doesn’t apply here.

So the only thing they have is this inference —

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


JUSTICE SOTOMAYOR: The preemption language would be geared to what was decided to be punished. It seems odd to think that the Federal government is deciding on employment sanctions and has unconsciously decided not to punish employees.

MR. CLEMENT: But, Justice Sotomayor, there’s a big difference between Congress deciding not as a matter of Federal law to address employees with an additional criminal prohibition, and saying that that decision itself has preemptive effect. That’s a rather remarkable additional step.

And here’s why I think, if you consider the legislative history, for those who do, it really supports us, because here’s what Congress confronted. I mean, they started thinking about this problem in 1971.

They passed IRCA in 1986. At that point, here’s the state of the world. It’s already unlawful, as a matter of Federal law, for the employee to get — to have this unlawful work; and, if they seek this unlawful work, they are subject to removal for doing it. In addition, Congress was told that most of the aliens who get this unlawful work are already here — they illegally entered, so they are already subject to an independent criminal offense. So at that point, Congress is facing a world where the employee is already subject to multiple prohibitions. The employer is completely scot-free as a matter of Federal law. And so at that point, in 1986, they address the employer’s side of the equation, they have an express preemption provision that says nothing about any intent of preempting the employee’s side of the ledger, and in that I don’t think —

JUSTICE GINSBURG: They did provide — I mean, your position was the Federal legislation regulates the supply side. That leaves the demand side open. But there is regulation, and the question is whether anything beyond that is inconsistent with the Federal — it’s not just that the person is removable, but if they use false documents in seeking work, that’s a Federal crime. So we have the — what you call the supply side is regulated, but you want to regulate it more.

MR. CLEMENT: Two quick responses, and then I’d like to save time for rebuttal, Justice Ginsburg.

The first is that if you look at what they regulate on the employee’s side, it’s really things that actually assist in regulating the employer’s side. Because what they are worried about is a fraudulent document that then is used essentially to trick the
employer into employing somebody who shouldn’t be employed.

The second thing is the more that you view IRCA as actually regulating part of the employee’s side, then I think the more persuasive it is that the express preemption provision doesn’t reach the employee’s side of the equation.

CHIEF JUSTICE ROBERTS: We’ll give you plenty of rebuttal time, but I’d like to hear what you have to say about section 3 before you sit down.

MR. CLEMENT: Thank you, Mr. Chief Justice. I appreciate the opportunity to do that. I do think as to section 3, the question is really — it’s a provision that is parallel to the Federal requirements and imposes the same punishments as the Federal requirement. So it’s generally not a fertile ground for preemption. But of course, there are cases that find preemption even in those analogous circumstances. They are the cases that the government is forced to rely on, cases like Buckman, cases like —

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

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

But, of course, this Court has confronted exactly that argument in California against Zook, where you had the statute of California that prohibited somebody operating as an interstate carrier without the ICC license. It was raised, you know, you have to let just the Feds enforce that law. Otherwise, there is a possibility of duplicative punishment, duplicative prosecution. And this Court rejected that argument there.

JUSTICE GINSBURG: Mr. Clement, it seems that the — I would think the largest hurdle for you is Hines which said, the registration scheme — Congress enacted a complete registration scheme which the States cannot complement or impose even auxiliary regulations. So I don’t see the alien registration as a question of obstacle preemption, but appeal preemption that alien — we don’t want competing registration schemes. We want the registration scheme to be wholly Federal.

MR. CLEMENT: Well, Justice Ginsburg, I think that’s part of the reason why I accepted Justice Kennedy’s characterization of the relevant language in Hines. Because although there is some general discussion there of field preemption, when the Court actually states what its holding is, it does state it in terms of obstacle preemption.

And here’s where I think there is a critical difference between what the Court had before it in Hines and what you have before you here. In Hines, Pennsylvania passed its statute before Congress passed the alien registration statute. So not surprisingly, you know, they weren’t — they weren’t soothsayers in Pennsylvania. They couldn’t predict the future. So when it got up here, there was a conflict between the provisions of the Pennsylvania registration law and the Federal registration law. And this Court struck it down on that preemption basis.

Here it’s quite different. Arizona had before it the Federal statute. It looked at the precise provisions in the Federal statute. It adopted those standards as its own, and then it imposed parallel penalties for the violation of the State equivalent.

And so I think the right analysis is really the analysis that this Court laid out in its Whiting decision, which says that in these kinds of cases, what you look for is whether or not the State scheme directly interferes with the operation of the Federal scheme.

JUSTICE SOTOMAYOR: Can I ask you something?

JUSTICE ALITO: Well, in that —


JUSTICE ALITO: In that regard, we are told that there are some important categories of aliens who can’t obtain registration, cannot obtain Federal registration, and yet they are people that nobody would think should be removed. I think someone with a pending asylum application would fall into that category. How would section 3 apply there?

MR. CLEMENT: I think it probably wouldn’t apply. There’s two provisions that might make it inapplicable. The first question you’d ask is whether that individual in that category would be subject to prosecution under 1304 and 1306. And if I understand, you know, the Government’s position, there are certain people where, you know, they can’t really get the registration document because of the narrow class that they are in.

And as I understand it, it is not a violation of either 1304 or 1306 to not get a registration document when you’re somebody who can’t get one. So you’re not liable for the willful failure to get a registration document, and when you don’t have a registration document to carry, you don’t run afoul of 1306 in the —

JUSTICE ALITO: Well, of course, if you’ve entered the country illegally, you can’t get a registration.

MR. CLEMENT: Well, sure.


MR. CLEMENT: But that’s not the narrow class we were talking about.

JUSTICE ALITO: I understand that. I understand the distinction you’re drawing, that you can’t be prosecuted for lack of a registration if you couldn’t have gotten a registration.

MR. CLEMENT: Well, if you’re in — no, if you’re in the country lawfully, I mean, you can try to register. And so somebody who enters illegally — I mean, they are already guilty of one Federal misdemeanor by the illegal entry.


MR. CLEMENT: But at the point that they stay 30 days and don’t try to register, then that’s an independent violation. So maybe I need to fix what I said and say, look, if you’re somebody who — if you did go to register, would be told: You’re fine, but we can’t give you a registration document, then that individual is not subject to prosecution under the Federal statute, therefore, wouldn’t be subject to prosecution under the State statute.

Rebuttal argument of Paul D. Clement on behalf of petitioners: 

MR. CLEMENT:  Thank you, Mr. Chief Justice, and may it please the Court:

I’d like to start briefly with the enforcement issues and then talk about the other provisions. The last thing I’ll say about the enforcement provision, since I do think that the Government’s rather unusual theory that something that’s okay when done ad hoc becomes preempted when it’s systematic, I think that theory largely refutes itself.

But I will say one thing, which is to just echo that there is no interference with enforcement priorities by simply giving the Federal Government information on which to bring their enforcement priorities to bear. And this is really illustrated by a point this Court made in its Florence decision earlier this month, which is that sometimes you pull somebody over for the most innocuous of infractions and they turn out to be the most serious of offenders. And so if you preclude officers, as happened in Phoenix, from communicating with the Federal Government, the Federal Government will not be able to identify the worst of the worst.

And if you want an example of this, look at the declaration of Officer Brett Glidewell at Joint Appendix 183 to 186. He pulled somebody over in a routine traffic stop and was shot by the individual. Now, the individual it turns out was wanted for attempted murder in El Salvador and was also guilty of illegal reentry into the United States. He was stopped on three previous occasions and his status was not verified. Now, if it had been, he certainly would have been apprehended. In at least two of the stops, his immigration status wasn’t checked because of the city policy, City of Phoenix.

Now, if the State, I submit, can do anything, it can at the State level override those kind of local policies and say, that’s not what we want. Community policing is all well and good, but we want to maximize communication with the Federal authorities. So I think the enforcement policy and priorities argument simply doesn’t work.

As to section 3, two points about that. One is, I respectfully disagree with the Solicitor General as to whether the various things that he led off — read off, the litany of situations where somebody is — technically doesn’t have registration would be a
violation of 1306(a).

And the reason I take that position is that provision says a willful failure to register. Now, maybe the prosecutors take the view that there is willfulness in those circumstances, but I don’t think many judges would. I think they would say that if you’ve been told by the Federal Government that you’re perfectly fine here and you don’t need to register, that that would be good enough to defeat a finding of willfulness. So I don’t think 1306(a) covers this case.

JUSTICE SOTOMAYOR: You’re inviting — you’re inviting the very sort of conflict that he’s talking about. Because what’s going to happen now is that if there is no statement by the Federal agency of legality, the person is arrested, and now we’re going to have Federal resources spent on trying to figure out whether they have an asylum application, whether they have this, whether they have that, whether they are exempted under this reason, whether the failure to carry was accidental or not — I mean, you are involving the Federal Government in your prosecution.


JUSTICE SOTOMAYOR: Now, you may say we’re not, because all we’re going to show is — what? That we got a Federal call — we got a Federal answer that the person wasn’t registered?

MR. CLEMENT: No, we’re going to say that we communicated with the Federal immigration officials and hey told us this is somebody who’s perfectly fine and doesn’t have to register.

JUSTICE SOTOMAYOR: No — no Confrontation — no Confrontation Clause problem with that? With relying on a call to a Federal agency and the police officer says, you’re arrested, you’re charged, it’s not an illegal alien — or it is an illegal alien.

MR. CLEMENT: My supposition, Justice Sotomayor, is that they would use that call to not bring the prosecution, so the issue wouldn’t even arise. But I do want to be clear about —

JUSTICE SOTOMAYOR: No, no, no. How about — how about they get a response, yes, it’s an illegal alien?

MR. CLEMENT: And they bring a prosecution under section 3 —

JUSTICE SOTOMAYOR: So how — where do they get the records that show that this person is an illegal alien that’s not authorized to be here?


JUSTICE SOTOMAYOR: Who do they get it from?

MR. CLEMENT: I think they would get it from the Federal authorities. I think it would be admitted. There might be a challenge in that case. I mean, you know, this is a facial challenge. I’m not going to try to address that potential Sixth Amendment issue.

What I would like to say is two things.

One, if there is some sloppiness in the way the Federal Government keeps its records so that there’s lots of people that really should be registered but aren’t, I can’t imagine that sloppiness has a preemptive effect.

The second thing I would say is that I do think, in thinking about section 3 in particular, the analogy is not the fraud on the FDA claim in Buckman, it’s really the State tort law that says that it’s a violation of State tort law to not even seek the approval that’s needed under the FDA for a device.

Now, States impose tort law for people that market a device without getting the necessary approval, and nobody thinks that’s preempted, because it serves the Federal interest. It doesn’t have a deluge of information. It forces people to get FDA approval. And in the same way, this State law will force people to register, which is what the Federal Government is supposed to want in the first place, so there is no preemption there. There is no conflict.

As to the employment provision, I do think it’s important to recognize that —

CHIEF JUSTICE ROBERTS: Finish your sentence.

MR. CLEMENT: — before 1986, the Government was not agnostic about unlawful employment by aliens.

The employees were already covered, and they were subject to deportation. So the Government said, we’re going to cover the employers for the first time. I can’t imagine why that would have preemptive effect.

Thank you, Your Honor.


Learn More: