Transcript: Supreme Court oral argument of Solicitor General Donald Verrilli on Arizona’s immigration law
Oral argument of Solicitor General Donald P. Verrilli on behalf of the respondents in Arizona v. United States on April 25, 2012:
GENERAL VERRILLI: Mr. Chief Justice, and
may it please the Court:
CHIEF JUSTICE ROBERTS: Before you get into what the case is about, I’d like to clear up at the outset what it’s not about. No part of your argument has to do with racial or ethnic profiling, does it? I saw none of that in your brief.
GENERAL VERRILLI: That’s correct.
CHIEF JUSTICE ROBERTS: Okay. So this is not a case about ethnic profiling.
GENERAL VERRILLI: We’re not making any allegation about racial or ethnic profiling in the case.
Mr. Clement is working hard this morning to portray SB 1070 as an aid to Federal immigration enforcement. But the very first provision of the statute declares that Arizona is pursuing its own policy of attrition through enforcement and that the provisions of this law are designed to work together to drive unlawfully present aliens out of the State.
That is something Arizona cannot do because the Constitution vests exclusive —
JUSTICE SOTOMAYOR: General, could you answer Justice Scalia’s earlier question to your adversary? He asked whether it would be the Government’s position that Arizona doesn’t have the power to exclude or remove — to exclude from its borders a person who’s here illegally.
GENERAL VERRILLI: That is our position, Your Honor. It is our position because the Constitution vests exclusive authority over immigration matters with the national government.
JUSTICE SCALIA: All that means, it gives authority over naturalization, which we’ve expanded to immigration. But all that means is that the Government can set forth the rules concerning who belongs in this country. But if, in fact, somebody 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?
GENERAL VERRILLI: Your Honor, the Framers vested in the national government the authority over immigration because they understood that the way this nation treats citizens of other countries is a vital aspect of our foreign relations. The national government, and not an individual State —
JUSTICE SCALIA: But it’s still up to the national government. Arizona is not trying to kick out anybody that the Federal government has not already said do not belong here. And the Constitution provides — even — even with respect to the Commerce Clause — “No State shall without the consent of Congress lay any imposts or duties on imports or exports except,” it says, “what may be absolutely necessary for executing its inspection laws.”
The Constitution recognizes that there is such a thing as State borders and the States can police their borders, even to the point of inspecting incoming shipments to exclude diseased material.
GENERAL VERRILLI: But they cannot do what Arizona is seeking to do here, Your Honor, which is to elevate one consideration above all others. Arizona is pursuing a policy that maximizes the apprehension of unlawfully present aliens so they can be jailed as criminals in Arizona unless the Federal Government agrees to direct its enforcement resources to remove the people that Arizona has identified.
CHIEF JUSTICE ROBERTS: Well, if that state does — well, that’s a question of enforcement priorities.
Well, let’s say that the government had a different set of enforcement priorities, and their objective was to protect to the maximum extent possible the borders; and, so anyone who is here illegally, they want to know about and they want to do something about, in other words, different than the current policy. Does that mean in that situation the Arizona law would not be preemptive?
GENERAL VERRILLI: I think the mandatory character of the Arizona law and the mandatory character of the obligations it imposes, especially as backed by this extraordinary provision in section 2(H), which imposes civil penalties of up to $5000 a day on any official in the State of Arizona who is not following section 2 or, as we read it, the rest of S.B. 1070, to the maximum extent possible, does create a conflict.
But I do think the most fundamental point about section 2 is to understand its relationship to the other provisions in the statute. Section 2 is in the statute to identify the class of people who Arizona is then committed to prosecute under section 3 and, if they are employed, also under section 5.
JUSTICE ALITO: Well, I have the same question as the Chief Justice. Suppose that the Federal Government changed its priorities tomorrow, and it said — they threw out the ones they have now, and they said the new policy is maximum enforcement, we want to know about every person who’s stopped or arrested, we want to — we want to their immigration status verified. Would the Arizona law then be un-preempted?
GENERAL VERRILLI: No, I think it’s still a problem, Your Honor. These decisions have to be made at the national level because it’s the national government and not — it’s the whole country and not an individual state that pays the price —
JUSTICE SCALIA: Do you have any example where — where enforcement discretion has the effect of preempting state action?
GENERAL VERRILLI: Well, I think we should think about section 3 of the law, Your Honor. I think it will help illustrate the point —
JUSTICE SCALIA: I’ll point out another case of ours where we’ve said that essentially the preemption of state law can occur, not by virtue of the Congress preempting, but because the Executive doesn’t want this law enforced so — so rigorously, and that preempts the state from enforcing it vigorously.
Do we have any cases —
GENERAL VERRILLI: I think the preemption here — focusing for a moment on section 3 — the preemption here flows from judgments of Congress, from the registration system that Congress set up in sections 1301 through 1306, from the decision of Congress in section 1103 in the law to vest the Secretary of DHS and the Attorney General with the authority to make the judgments about how this law is going to be enforced —
JUSTICE SCALIA: Well, they do that with all Federal criminal statutes. And you acknowledge that as a general matter, states can enforce Federal criminal law, which is always entrusted to the Attorney General.
GENERAL VERRILLI: They can make — they can engage in detention in support of the enforcement of Federal law. That’s what the OLC opinion from 2002 says. It does not say that they can prosecute under Federal law and make their own decisions. That’s a far different matter.
And it really goes to the heart, I think, of what’s wrong with section 3 of this Act, in that —
CHIEF JUSTICE ROBERTS: Well, but you say that the Federal Government has to have control over who to prosecute, but I don’t see how Section 2(B) says anything about that at all. All it does is notify the Federal Government, here’s someone who is here illegally, here’s someone who is removable. The discretion to prosecute for Federal immigration offenses rests entirely with the Attorney General.
GENERAL VERRILLI: That’s correct, but with respect to — and let me address something fundamental about section 2. That is true, but I think it doesn’t get at the heart of the problem here.
Section 1 of this statute says that sections 2 and 3 and 5 are supposed to work together to achieve this policy of attrition through enforcement. And so what section 2 does is identify a population that the State of Arizona is going to prosecute under section 3 and section 5.
CHIEF JUSTICE ROBERTS: Right. So apart from section 3 and section 5, take those off the table, you have no objection to section 2.
GENERAL VERRILLI: We do, Your Honor; but, before I take 3 and 5 off the table, if I could make one more point about 3 and 5, please. The — I think — because I think it’s important to understand the dilemma that this puts the Federal Government in.
Arizona has got this population, and they’ve — and they’re by law committed to maximum enforcement. And so the Federal Government’s got to decide, are we going to take our resources, which we deploy for removal, and are we going to use them to deal with this population, even if it is to the detriment of our priorities —
CHIEF JUSTICE ROBERTS: Exactly. The Federal Government has to decide where it’s going to use its resources.
And what the state is saying, here are people who are here in violation of Federal law, you make the decision. And if your decision is you don’t want to prosecute those people, fine, that’s entirely up to you.
That’s why I don’t see the problem with section 2(B).
GENERAL VERRILLI: Here’s the other half — here’s the other half of the equation, Mr. Chief Justice, which is that they say if you’re not going to remove them, we are going to prosecute them. And that means that the — and I think this does get at the heart of why this needs to be an exclusive national power —
CHIEF JUSTICE ROBERTS: Only under section 3 and section 5.
GENERAL VERRILLI: Yes, but those are — but what you’re talking about is taking somebody whose only offense is being unlawfully present in the country and putting them in jail for up to 6 months, or somebody who —
CHIEF JUSTICE ROBERTS: Well, let’s say you’re worried about —
GENERAL VERRILLI: — or like 30 days, forgive me; 6 months for employment.
CHIEF JUSTICE ROBERTS: There you go. Right. For the notification, what could possibly be wrong if Arizona arrests someone, let’s say for drunk driving, and their policy is you’re going to stay in jail overnight no matter what, okay, what’s wrong during that period by having the Arizona arresting officer say, I’m going to call the Federal agency and find out if this person is here illegally, because the Federal law says the Federal agency has to answer my question? It seems an odd argument to say the Federal agency has to answer the state’s question, but the state can’t ask it.
GENERAL VERRILLI: Well, we’re not saying the state can’t ask it in any individual case. We recognize that section —
CHIEF JUSTICE ROBERTS: You think there are individual cases in which the state can call the Federal Government and say: Is this person here illegally?
GENERAL VERRILLI: Yes, certainly, but that doesn’t make —
CHIEF JUSTICE ROBERTS: Okay. So doesn’t that defeat the facial challenge to the Act?
GENERAL VERRILLI: No. I don’t think so, Mr. Chief Justice, because the — I think the problem here is in that — is in every circumstance as a result of section 2(B) of the law, backed by the penalties of section 2(H), the state official must pursue the priorities that the state has set, irrespective of whether they are helpful to or in conflict with the Federal priorities.
And so —
JUSTICE ALITO: Well, suppose that every — suppose every law enforcement officer in Arizona saw things exactly the same way as the Arizona legislature. And so, without any direction from the legislature, they all took it upon themselves to make these inquiries every time they stopped somebody or arrested somebody. Would that be a violation of Federal law?
GENERAL VERRILLI: No, it wouldn’t be, Your Honor, because in that situation they would be free to be responsive to Federal priorities, if the Federal officials came back to them and said, look, we need to focus on gangs, we need to focus on this drug problem at the border —
JUSTICE ALITO: But what if they said, well, we don’t care what your priorities are; we have our priorities, and our priority is maximum enforcement, and we’re going to call you in every case? It was all done on an individual basis, all the officers were individually doing it —
GENERAL VERRILLI: Yes, well —
JUSTICE ALITO: — that would be okay?
GENERAL VERRILLI: Well, if there’s a — if there’s a state policy locked into law by statute, locked into law by regulation, then we have a problem. If it’s not —
JUSTICE SOTOMAYOR: General —
GENERAL VERRILLI: — I mean, the line is mandatory versus discretionary —
JUSTICE ALITO: That’s what I can’t understand because your argument — 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.
GENERAL VERRILLI: But they — but with respect to immigration enforcement, and to the extent all they’re doing is bringing people to the Federal Government’s attention, they are cooperating in the enforcement of Federal law —
JUSTICE KENNEDY: But the hypothetical is that that’s all the legislature is doing.
GENERAL VERRILLI: Well, except I think, Justice Kennedy, the problem is that it’s not cooperation if in every instance the officers in the state must respond to the priorities set by the state government and are not free to respond to the priorities of the Federal officials who are trying to enforce the law in the most effective manner possible.
JUSTICE SOTOMAYOR: I’m sorry. I’m a little confused. General, I’m terribly confused by your answer. Okay? And I don’t know that you’re focusing in on what I believe my colleagues are trying to get to. Making the — 2(B) has two components, as I see it. Every person that’s suspected of being an alien who’s arrested for another crime — that’s what Mr. Clement says the statute means — the officer has to pick up the phone and call — and call the agency to find out if it’s an illegal alien or not. He tells me that unless there’s another reason to arrest the person — and that’s 3 and 6, or any of the other provisions — but putting those aside, we’re going to stay just in 2(B), if the government says, we don’t want to detain the person, they have to be released for being simply an illegal alien, what’s wrong with that?
GENERAL VERRILLI: Well —
JUSTICE SOTOMAYOR: Taking out the other provisions, taking out any independent state-created basis of liability for being an illegal alien?
GENERAL VERRILLI: I think there are three.
The first is the — the Hines problem of harassment. Now, we are not making an allegation of racial profiling; nevertheless, there are already tens of thousands of stops that result in inquiries in Arizona, even in the absence of S.B. 1070. It stands to reason that the legislature thought that that wasn’t sufficient and there needed to be more. And given that you have a population in Arizona of 2 million Latinos, of whom only 400,000 at most are there unlawfully —
JUSTICE SCALIA: Sounds like racial profiling to me.
GENERAL VERRILLI: And they’re — and given that what we’re talking about is the status of being unlawfully present —
JUSTICE SOTOMAYOR: Do you have the statistics as to how many arrests there are and how many — and what the — percentage of calls before the statute?
GENERAL VERRILLI: There is some evidence in the record, Your Honor. It’s the — the Palmatier declaration, which is in the Joint Appendix, was the — he was the fellow who used the run the Law Enforcement Support Center, which answers the inquiries. That — that declaration indicates that in fiscal year 2009, there were 80,000 inquiries and —
JUSTICE SCALIA: What does this have to do with Federal immigration law? I mean, it may have to do with racial harassment, but I thought you weren’t relying on that.
GENERAL VERRILLI: The —
JUSTICE SCALIA: Are you objecting to harassing the — the people who have no business being here? Is that — surely you’re not concerned about harassing them. They have been stopped anyway, and all you’re doing is calling up to see if they are illegal immigrants or not. So you must be talking about other people who have nothing to do with — with our immigration laws. Okay Citizens and — and other people, right?
GENERAL VERRILLI: And other — and other people lawfully present in the country, certainly, but this is —
JUSTICE SCALIA: But that has nothing to do with the immigration law —
GENERAL VERRILLI: Hines is —
JUSTICE SCALIA: — which is what you’re asserting preempts all of this activity.
GENERAL VERRILLI: Hines identified this problem as harassment as — as a central feature of preemption under the immigration laws because of the concern that the way this nation treats citizens of other countries is fundamental to our foreign relations. And this is a —
JUSTICE BREYER: Well, let’s — let me just go back, because I think — I’m trying to get focused the question I think others are asking, and one way to focus it is the same question I asked Mr. Clement.
Think of 2(B), the first sentence. All right? Now, I can think — I’m not saying they are right, but if that means you’re going to hold an individual longer than you would have otherwise, I can think of some arguments that it is preempted, and some replies. So keep that out of it.
Suppose that we were to say, that sentence, as we understand it, does not raise a constitutional problem as long as it is interpreted to mean that the policeman, irrespective of what answer he gets from ICE, cannot detain the person for longer than he would have done in the absence of this provision.
Now, in your view, is there any preemption exemption — argument against — any preemption argument against that sentence as I have just interpreted it? I don’t know what your answer is, and that’s why I’m asking.
GENERAL VERRILLI: Yes. We would think it would ameliorate —
JUSTICE BREYER: And if so, what?
GENERAL VERRILLI: — it would ameliorate the practical problem; but, there is still a structural problem here in that this is an effort to enforce Federal law. And the — under the Constitution, it’s the President and the Executive Branch that are responsible for the enforcement of Federal law —
CHIEF JUSTICE ROBERTS: It is —
GENERAL VERRILLI: — and —
CHIEF JUSTICE ROBERTS: It is not an effort to enforce Federal law. It is an effort to let you know about violations of Federal law. Whether or not to enforce them is still entirely up to you. If you don’t want to do this, you just tell the person at LESC — if that’s the right — is that the right acronym?
GENERAL VERRILLI: It is, Mr. Chief Justice.
CHIEF JUSTICE ROBERTS: — LESC, look, when somebody from Arizona calls, answer their question, and don’t even bother to write it down. Okay? I stopped somebody else, is he legal or illegal, let me check — it’s, oh, he’s illegal. Okay, thanks, good-bye. I mean, why — it is still your decision. And if you don’t want to know who is in this country illegally, you don’t have to.
GENERAL VERRILLI: That’s correct. But the process of — the process of cooperating to enforce the Federal immigration law starts earlier, and it starts with the process of making the decisions about who to — who to stop, who to apprehend, who to check on. And the problem — the structural problem we have is that those decisions — in the making of those decisions, Arizona officials are not free —
CHIEF JUSTICE ROBERTS: Under 2(B), the person is already stopped for some other reason. He’s stopped for going 60 in a 20. He’s stopped for drunk driving. So that decision to stop the individual has nothing to do with immigration law at all. All that has to do with immigration law is the — whether or not they can ask the Federal Government to find out if this person is illegal or not, and then leave it up to you.
It seems to me that the Federal Government just doesn’t want to know who is here illegally or not.
GENERAL VERRILLI: No, I — I don’t think that’s right. I think we want to be able to cooperate and focus on our priorities. And one thing that’s instructive in that regard, Mr. Chief Justice, are the declarations put into the record by the police chiefs from Phoenix and Tucson, both of whom I think explain effectively why S.B. — the section 2(B) obligation gets in the way of the mutual effort to — to focus on the priorities of identifying serious criminals so that they can be removed from the country.
JUSTICE SCALIA: Anyway, what — what’s wrong about the states enforcing Federal law? There is a Federal law against robbing Federal banks. Can it be made a state crime to rob those banks? I think it is.
GENERAL VERRILLI: I think it could, but I think that’s quite —
JUSTICE SCALIA: But does the Attorney General come in and say, you know, we might really only want to go after the professional bank robbers? If it’s just an amateur bank robber, you know, we’re — we’re going the let it go. And the state’s interfering with our — with our whole scheme here because it’s prosecuting all these bank robbers.
GENERAL VERRILLI: Well, of course, no one would —
JUSTICE SCALIA: Now, would anybody listen to that argument?
GENERAL VERRILLI: Of course not.
JUSTICE SCALIA: Of course not.
GENERAL VERRILLI: But this argument is quite different, Justice Scalia, because here what we are talking about is that Federal registration requirement in an area of dominant Federal concern, exclusive Federal concern with respect to immigration, who can be in the country, under what circumstances, and what obligations they have —
JUSTICE KENNEDY: Now, are you talking about 3 now or —
GENERAL VERRILLI: Yes.
JUSTICE KENNEDY: — or does this argument relate to 2 as well?
GENERAL VERRILLI: This is an argument about section 3.
JUSTICE ALITO: Well, could I ask you this about 2, before you move on to that? How is a — this is just a matter of information. How can a state officer who stops somebody or who arrests somebody for a nonimmigration offense tell whether that person falls within the Federal removal priorities without making an inquiry to the Federal Government?
For example, I understand one of the priorities is people who have previously been removed, then that might be somebody who you would want to arrest and — and remove. But how can you determine that without making the — the inquiry in the first place?
GENERAL VERRILLI: Well, in any individual case, that’s correct. You — you would need to make the inquiry in the first place. It won’t always be correct, if you’re arresting somebody based on probable cause that they have committed a serious crime, and they — and they — the inquiry into whether — into their status will be enough to identify that person for priority —
JUSTICE ALITO: Well, what if they just, they stop somebody for a traffic violation, but they want to know whether this is a person who previously was removed and has come back or somebody who has just — just within the last few hours possibly come — well, let’s just — somebody who’s previously been removed?
How can you know that without making an inquiry?
GENERAL VERRILLI: Well, I think — I think it’s correct that you can’t, but there is a — there is difference, Justice Alito, I think, between the question of any individual circumstance and a mandatory policy backed by this civil fine, that you’ve got to make the inquiry in every case. I mean, I think it’s as though, if I can use an analogy, if you ask one of your law clerks to bring you the most important preemption cases from the last 10 years, and they rolled in the last — the last hundred volumes of the U.S. Reports and said, well, they are in there. That — that doesn’t make it —
CHIEF JUSTICE ROBERTS: What if they just rolled in Whiting?
CHIEF JUSTICE ROBERTS: That’s a pretty good one.
JUSTICE BREYER: Look, in the Federal statute, it says in 1373 that nobody can prohibit or restrict any government entity from making this inquiry of the Federal Government. And then it says that the Federal Government has — any agency — and then it says the Federal has an obligation to respond.
Now, assuming the statute were limited as I say, so nothing happened to this individual, nothing happened to the person who’s stopped that wouldn’t have happened anyway, all that happens is the person — the policeman makes a phone call. Now that’s what I’m trying to get at.
If that were the situation, and we said it had to be the situation, then what in the Federal statute would that conflict with, where we have two provisions that say any policeman can call?
GENERAL VERRILLI: So —
JUSTICE BREYER: What’s the — that’s — that’s where I’m trying to push you.
GENERAL VERRILLI: Yes.
JUSTICE BREYER: Because in my mind I’m not clear what your answer is to that.
GENERAL VERRILLI: I understand the question. And I think the answer is this:
1373 was enacted in 1996, along with 1357. And 1357 is the provision that sets forth the powers and authorities of Federal immigration officials.
It contains 1357(g), which effectively says that Federal — that the Federal Government, the Attorney General, can deputize state officials, so long as they’re — they obtain adequate training and they are subject to the direction and control of the Attorney General in carrying out immigration functions.
Then the last provision, (g)(10), says that nothing that we’ve said so far should be read to preclude informal cooperation, communication or other informal cooperation in the apprehension, detention and removal of unlawfully present persons; but, it’s the focus on cooperation.
And I think you have to — so I don’t think you can read into 1373 the — the conclusion that what Congress was intending to do was to shift from the Federal government to the states the authority to set enforcement priorities, because I think the cooperation in this context is cooperation in the service of the Federal enforcement.
JUSTICE SOTOMAYOR: Can I get to a different question? I think even I or someone else cut you off when you said there were three reasons why — 2(B). Putting aside your argument that this — that a systematic cooperation is wrong — you can see it’s not selling very well — why don’t you try to come
up with something else?
Because I, frankly — as the chief has said to you, it’s not that it’s forcing you to change your enforcement priorities. You don’t have to take the
person into custody. So what’s left of your argument?
GENERAL VERRILLI: So let me just summarize what I think the three are, and then maybe I can move on to sections 3 and 5.
With respect to — with respect to 2, we think the harassment argument — we think this is a more significant harassment problem than was present in Hines —
JUSTICE SOTOMAYOR: Please move —
GENERAL VERRILLI: With respect to — in addition, we do think that there is a structural accountability problem in that they are enforcing Federal law but not answerable to the Federal officials. And third, we do think there are practical impediments, in that the — the result of this is to deliver to the Federal system a volume of inquiries that makes it harder and not easier to identify who the priority persons are for removal. So those are the three reasons.
CHIEF JUSTICE ROBERTS: General, you have been trying valiantly to get us to focus on section 3, so maybe we should let you do that now.
GENERAL VERRILLI: Thank you, Mr. Chief Justice.
The — I do think the key thing about section 3 is that we — is that section 3 is purporting to enforce a federal registration requirement. That’s a relationship between the alien and the United States government that’s exclusively a Federal relationship. It’s governed by the terms of 1301 through 1306. And the way in which those terms are enforced does have very significant Federal interest at its heart, and there is no state police power interest in that Federal registration relationship.
And I do think — I think it’s very important — Justice Alito raised the question of these categories of people. I think it is quite important to get clarity on that. The — if you are — if you have come into the country unlawfully, but you have a pending application for asylum, a pending application for temporary protective status because you would have to be removed to a country to which you can’t be removed because of the conditions in the country, if you have a valid claim for relief under the Violence Against Women Act based on your treatment, if you have a valid claim for relief because you are a victim of human trafficking, if you have a valid claim for relief because you are the victim of a crime or a witness to a crime, all of those persons are in technical violation of 1306(a).
And — and it seems to me they — they are in violation of 1306(a), so my friend, Mr. Clement, is not correct in saying that those are people who aren’t in violation of 1306(a) and, therefore, aren’t in violation of section 3. They are in violation.
JUSTICE SCALIA: Well, maybe 1306(a) ought to be amended, then. I mean, we have statutes out there that there a lot of people in violation of it and — well, the Attorney General will take care of it. Is that how we write our criminal laws?
GENERAL VERRILLI: But it’s a situation in which no reasonable person would think that the individual ought to be prosecuted; and, yet, very often, the states aren’t even going to know. In fact, about asylum status, they can’t know because there are regulations that require that to be kept private to avoid retaliation against the person making the application.
And so, this is — so this is — this is, I think, a very strong illustration of why the enforcement discretion over section 3 needs to be vested exclusively in the Federal Government.
JUSTICE SCALIA: Again, I ask you, do you have any other case in which the basis for preemption has been you are interfering with the Attorney General’s
GENERAL VERRILLI: Well, this is —
JUSTICE SCALIA: I think that’s an extraordinary basis for saying that the state is preempted.
GENERAL VERRILLI: I think what is extraordinary about this, actually, Justice Scalia, is the state’s decision to enact a statute purporting to criminalize the violation of a Federal registration obligation. And I think that’s the problem here. And they are doing it for a reason —
JUSTICE SCALIA: It’s not criminalizing anything that isn’t criminal under Federal law.
GENERAL VERRILLI: But — but what —
JUSTICE SCALIA: It’s the bank. It’s the Federal bank example —
GENERAL VERRILLI: Well, no.
JUSTICE SCALIA: — a state law which criminalizes the same thing that the Federal law does.
GENERAL VERRILLI: I think it’s quite different.
What they are doing here is using 1306(a) to get at the status of unlawful presence. The only people who can be prosecuted under section 3 are people who are unlawfully present in the country. That’s what the statute says. And they are using it to get at that category of people to essentially use their state criminal law to perform an immigration function.
And the immigration function is to try to — to prosecute these people. And, by the way, you can prosecute somebody, they can be put in jail for 30 days here; but, under Federal law, a violation of 1306(a) is a continuing offense. So, the day they get out of jail for that 30 days, they can be arrested again, and this can happen over and over again. And the point of this provision is to drive unlawfully present people out of the State of Arizona.
JUSTICE KENNEDY: Suppose — suppose — well, assume these are two hypothetical — two hypothetical instances.
First, the Federal government has said, we simply don’t have the money or the resources to enforce our immigration laws the way we wish. We wish we could do so, but we don’t have the money or the resources.
That’s the first — just hypothetical.
JUSTICE SCALIA: You said that in your brief, didn’t you?
JUSTICE KENNEDY: Also hypothetical is that the State of Arizona has — has a massive emergency with social disruption, economic disruption, residents leaving the State because of flood of immigrants. Let’s just assume those two things.
Does that give the State of Arizona any powers or authority or legitimate concerns that any other state wouldn’t have?
GENERAL VERRILLI: Of course, they have legitimate concerns in that situation. And, Justice Kennedy —
JUSTICE KENNEDY: And can they go to their legislature and say, we’re concerned about this, and ask the legislature to enact laws to correct this problem?
GENERAL VERRILLI: They — they certainly can enact laws of general application. They can enforce the laws of general application that are on the books. They already — as a result of 8 U.S.C. 1621, it’s clear that they are under no obligation to provide any state benefits to the population. But I think, most importantly, they can — and — not most importantly, but as importantly, they can engage in cooperative efforts with the Federal government —
Excuse me. I see my —
CHIEF JUSTICE ROBERTS: No, keep going.
GENERAL VERRILLI: They can — they can engage in cooperative efforts with the Federal government, of which there are many going on in Arizona and around the country, in order to address these problems.
JUSTICE SCALIA: General, didn’t you say in your brief — I forget where it was — I thought you said that the Justice Department doesn’t get nearly enough money to enforce our immigration laws? Didn’t you say that?
GENERAL VERRILLI: Of course, we have to set priorities. There are only —
JUSTICE SCALIA: Exactly. Okay. So the state says, well, that may be your priorities, but most of these people that you’re not going after, or an inordinate percentage of them, are here in our state, and we don’t like it. They are causing all sorts of problems. So we’re going to help you enforce Federal law. We’re not going to do anything else. We’re just enforcing Federal law.
GENERAL VERRILLI: Well, what I think they are going to do in Arizona is something quite extraordinary, that has significant real and practical foreign relations effects. And that’s the problem, and it’s the reason why this power needs to be vested exclusively in the Federal government.
What they are going to do is engage, effectively, in mass incarceration, because the obligation under section 2(H), of course, is not merely to enforce section 2 to the fullest possible extent at the — at the risk of civil fine, but to enforce Federal immigration law, which is what they claim they are doing in section 3 and in section 5.
And so — so, you’re going to have a situation of mass incarceration of people who are unlawfully present. That is going to raise — poses a very serious risk of raising significant foreign relations problems.
And these problems are real. It is the problem of reciprocal treatment of the
United States citizens in other countries.
JUSTICE KENNEDY: So you’re saying the government has a legitimate interest in not enforcing its laws?
GENERAL VERRILLI: No. We have a legitimate interest in enforcing the law, of course, but it needs to be — but these — this Court has said over and over again, has recognized that the — the balance of interest that has to be achieved in enforcing the — the immigration laws is exceedingly delicate and complex, and it involves consideration of foreign relations, it involves humanitarian concerns, and it also involves public order and public —
JUSTICE SOTOMAYOR: General, when — when — I know your brief, you had — you said that there are some illegal aliens who have a right to remain here.
And I’m just realizing that I don’t really know what happens when the Arizona police call the Federal agency. They give the Federal agency a name, correct?
GENERAL VERRILLI: I assume so, yes.
JUSTICE SOTOMAYOR: You don’t really have knowledge of what —
GENERAL VERRILLI: Well, they — I mean, it can come in lots of different ways, but generally they will get a name and some other identifying information.
JUSTICE SOTOMAYOR: All right. And what does the computer have? What information does your system have?
GENERAL VERRILLI: Yes. So the way this works is there is a system for — for incoming inquiries. And then there is a person at a computer terminal. And that person searches a number of different databases. There are eight or ten different databases, and that person will check the name against this one, check the name against that one, check the name against the other one, to see if there are any hits.
JUSTICE SOTOMAYOR: Well, how does that database tell you that someone is illegal as opposed to a citizen?
Today, if you use the names Sonya Sotomayor, they would probably figure out I was a citizen. But let’s assume it’s John Doe, who lives in Grand Rapids. So they are legal. Is there a citizen database?
GENERAL VERRILLI: The citizen problem is actually a significant problem. There isn’t a citizen database. If you —
JUSTICE SOTOMAYOR: I’m sorry, there is or there isn’t?
GENERAL VERRILLI: There is not. If you have a passport, there is a database if you look “passports.” So you could be discovered that way. But otherwise there is no reliable way in the database to verify that you are a citizen unless you are in the passport database. So you have lots of circumstances in which people who are citizens are going to come up no match. There’s no — there is nothing suggesting in the databases that they have an immigration problem of any kind, but there’s nothing to —
JUSTICE SOTOMAYOR: So if you run out of your house without your driver’s license or identification and you walk into a park that’s closed and you’re arrested, you — they make the call to this agency. You could sit there forever while they —
GENERAL VERRILLI: Yes, and I —
JUSTICE SOTOMAYOR: Figure out if you’re —
GENERAL VERRILLI: While I’m at it, there is a factual point I think I’d like to correct. Mr. Clement suggested that it takes 10 minutes to process these calls. That’s true, but you’re in a queue for 60 minutes before it takes the 10 minutes to process the call. So the average time is 70 minutes, not 10 minutes.
CHIEF JUSTICE ROBERTS: I had a little — wasn’t sure about your answer to Justice Kennedy.
Is the reason that the government is not focused on people who are here illegally as opposed to the other categories we were talking about because of prioritization or because of lack of resources? You suggested that if the — every illegal alien that you identify is either removed or prosecuted, that that would cause tensions with other governments.
So I — I don’t understand if it’s because you don’t have enough resources or because you don’t want to prosecute the people who are simply here illegally as opposed to something else.
GENERAL VERRILLI: Well, it’s a little more complicated than that. I think the point is this, that with respect to persons who are unlawfully present, there are some who are going to fall in our priority categories, there are those who have committed serious offenses, there are those who have been removed and have come back, and there are other priority categories.
Because we have resource constraints and there are only so many beds in the detention centers and only so many immigration judges, we want to focus on those priority categories, find them, remove them.
There is a second category, and that is, individuals who are here in violation technically of 1306(a), but who have a valid asylum application or application for temporary protected status or other — and with respect to those persons that we think would — it’s affirmatively harmful to think that they ought to be prosecuted.
And then there is an additional category of people who are not in the second category and not priorities and the form — and we think there, the idea that an individual State will engage in a process of mass incarceration of that population, which we do think is what section 2(H) commits Arizona to do under section 3, raises a significant foreign relations problem.
JUSTICE SCALIA: Well, can’t you avoid that particular foreign relations problem by simply deporting these people? Look, free them from the jails —
GENERAL VERRILLI: I really think —
JUSTICE SCALIA: And send them back to the countries that are — that are objecting.
GENERAL VERRILLI: This is a —
JUSTICE SCALIA: What’s the problem with that?
GENERAL VERRILLI: Well, a couple of things.
First is, I don’t think it’s realistic to assume that the aggressive enforcement of sections 3 and 5 in Arizona is going to lead to a mass migration back to countries of origin. It seems a far more likely outcome is going to be migration to other States. And that’s a significant problem. That’s part of the reason why this problem needs to be managed on a national basis.
Beyond that, I do think, you know, the — it’s worth bearing in mind here that the country of Mexico is in a central role in this situation. Between 60 and 70 percent of the people that we remove every year, we remove to Mexico. And in addition, we have to have the cooperation of the Mexicans. And I think as the Court knows from other cases, the cooperation of the country to whom we are — to which we are removing people who are unlawfully present is vital to be able to make removal work.
In addition, we have very significant issues on the border with Mexico. And in fact, they are the very issues that Arizona is complaining about in that —
JUSTICE SCALIA: So we have to — we have to enforce our laws in a manner that will please Mexico. Is that what you’re saying?
GENERAL VERRILLI: No, Your Honor, but what it does — no, Your Honor, I’m not saying that —
JUSTICE SCALIA: Sounded like what you were saying.
GENERAL VERRILLI: No, but what I am saying is that this points up why the Framers made this power an exclusive national power. It’s because the entire country feels the effects of a decision — conduct by an individual State. And that’s why the power needs to be exercised at the national level and not the State level.
CHIEF JUSTICE ROBERTS: And your concern is the problems that would arise in bilateral relations if you remove all of these people, or a significant percentage or a greater percentage than you are now. Nothing in the law requires you to do that. All it does is lets you know where — that an illegal alien has been arrested, and you can decide, we are not going to
initiate removal proceedings against that individual. It doesn’t require you to remove one more person than you would like to remove under your priorities.
GENERAL VERRILLI: Right, but the problem I’m focused on — we’re focused on, Mr. Chief Justice, is not our removal decisions, but Arizona’s decision to incarcerate, and the foreign relations problem that that raises. That’s why this power has got to be exercised at the national level.
CHIEF JUSTICE ROBERTS: And that arises under 3 and 5.
GENERAL VERRILLI: Correct.
CHIEF JUSTICE ROBERTS: But not 2.
GENERAL VERRILLI: Well, 2 identifies the population that’s going to be prosecuted under 3 and 5. I haven’t — I’ve been up here a long time. I haven’t said anything about section 5 yet. And I don’t want to tax the Court’s patience, but if I could spend a minute on section 5.
CHIEF JUSTICE ROBERTS: Section 5.
GENERAL VERRILLI: The — I do think the fundamental point about section 5 here is that in 1986, Congress fundamentally changed the landscape. Congress made a decision in 1986 to make the employment of aliens a central concern of national immigration policy. And this Court has described the 1986 law as a comprehensive regime.
Now, what my friend, Mr. Clement, says, is that it may be a comprehensive regime for employers; it’s not a comprehensive regime for employees. And therefore, it’s — there ought not be any inference here that the States are precluded from criminalizing efforts to seek or obtain employment in Arizona. But I really think that’s not right.
The — employment is one problem. And Congress tackled the problem of employment and made a decision, a comprehensive decision, about the sanctions it thought were appropriate to govern. And Congress did, as Justice Ginsburg suggested, make judgments with respect to the circumstances under which employees could be held criminally liable, as well as the circumstances under
which employers could be held liable.
And I think it is useful in thinking about the judgments Congress actually made —
JUSTICE SCALIA: So field preemption; is that your argument with respect to —
GENERAL VERRILLI: It’s both. I think we’re making both a field and a conflict preemption argument here, Justice Scalia. And the — I think it’s worth examining the specific judgments Congress made in 1986.
On the employer’s side — and, after all, this is a situation in which the concern here is that the employer is in a position of being the exploiter and the alien of being the exploited — on the employer’s side, Congress said that States may not impose criminal sanctions, and even — and the Federal Government will not impose criminal sanctions for the hiring of employees unless there’s a pattern or practice.
It seems quite incongruous to think that Congress, having made that judgment and imposed those restrictions on the employer’s side, would have left States free to impose criminal liability on employees merely for seeking work, for doing what you I think would expect most otherwise law-abiding people to do, which is to find a job so they can feed their families. So I think that’s a significant problem.
In addition, Congress made clear in the law that the I-9 form could not be used for any other purpose than prosecutions for violation of the Federal antifraud requirements. And if Congress wanted to leave States free to impose criminal sanctions on employees for seeking work, they wouldn’t have done that, it seems to me.
So that I think there are strong indicators in the text that Congress did make a judgment, and the judgment was this far and no farther. And it’s reasonable that Congress would have done so, for the same kinds of foreign relations concerns that I was discussing with respect to section 3. It would be an extraordinary thing to put someone in jail merely for seeking work. And yet that’s what Arizona proposes to do under section 5 of its law.
Now, of course, there is an express preemption provision, but the express preemption provision, as this Court has said many times, does not
operate to the exclusion of implied preemption, field or conflict. So we do think those principles apply here.
We think there’s a reason why the express preemption provision was limited to the employer’s side, which is that after DeCanas laws had been enacted on the employer’s side, and with — Congress was making clear that those were preemptive, there were no laws on the employee’s side at the time. And therefore, no reason for preemption.
CHIEF JUSTICE ROBERTS: Thank you, General.
GENERAL VERRILLI: Thank you, Mr. Chief Justice.
- WhatTheFolly.com: Transcript: Supreme Court oral argument of Paul Clement on Arizona’s immigration law
- SupremeCourt.gov: Arizona v. United States transcript of oral argument on April 25, 2012 (PDF)
- SupremeCourt.gov: Arizona v. United States petitioner writ for certiorari (PDF)
- SupremeCourt.gov: Arizona v. United States respondent brief (PDF)
- SupremeCourt.gov: Arizona v. United States petitioner reply brief (PDF)