Arizona v. United States - Oral Argument - April 25, 2012

Arizona v. United States

Media for Arizona v. United States

Audio Transcription for Opinion Announcement - June 25, 2012 (Part 2) in Arizona v. United States
Audio Transcription for Opinion Announcement - June 25, 2012 (Part 1) in Arizona v. United States

Audio Transcription for Oral Argument - April 25, 2012 in Arizona v. United States

John G. Roberts, Jr.:

We'll hear argument this morning in Case 11-182, Arizona v. the United States.

Mr. Clement.

Paul D. 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--

Sonia Sotomayor:

Mr. Clement--

Paul D. Clement:

--Yes.

Sonia 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?

Paul D. 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--

Sonia Sotomayor:

Can I -- can I--

Paul D. Clement:

--Sure.

Sonia 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.