At Supreme Court Arguments in ARIZONA v. UNITED STATES, Justice Sotomayor Grills Both Sides

Yesterday at the United States Supreme Court, Justice Sonia Sotomayor, appointed by President Obama, was very active in her questioning of both the lawyers for ARIZONA v UNITED STATES, a case which addresses the constitutionality of Arizona's SB 1070 immigration law.

Unlike other outlets that are producing snippets of Sotomayor's questions and the respective lawyers' responses, we have excerpted segments from the official SCOTUS transcript to provide more context as to Sotomayor's questions and arguments being presented by both parties. Our take? Sotomayor raises some serious concerns about Arizona's law but also makes sure to point out the holes in the federal government's arguments.

Here are the exchanges between Sotomayor and Peter Clement, who argued for Arizona.

JUSTICE SOTOMAYOR:  Mr. Clement –

MR. CLEMENT:  Yes.

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:  Can I – can I –

MR. CLEMENT:  Sure.

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 8 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's 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.

Sotomayor later asks for clarification.

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.

Later in the proceedings.

JUSTICE SOTOMAYOR:  Counsel, could – does 18 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.

Sotomayor follows up later asking for more clarification.

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.

MR. CLEMENT: Sure.

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 –

Here is are excerpted exchanges between Solicitor General Donald Verrilli, Sotomayor, with a few comments from Justice Scalia.

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.

 

Later in the proceedings.

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.

 

Later in the proceedings.

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 Sonia 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.

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