GWEN IFILL: The U.S. Supreme Court heard arguments today over Arizona’s immigration law. The justices appeared skeptical of the administration’s claim that the state had overstepped federal law.
Following the arguments, supporters and critics of the measure made their case outside the court.
KRIS KOBACH, Kansas secretary of state: This law is a paradigm of cooperation with the federal government. The law mirrors federal law, so we drafted the Arizona statute so that it uses the exact terminology, the exact phrasing of federal law.
And so all it says is, if some behavior is prohibited at the federal level, then we’re going to make it a state crime as well. That is mirroring and supporting the federal government. When the Justice Department sued Arizona, that was an unprecedented thing in America, because never before has the Justice Department sued a state for trying to help.
REP. LUIS GUTIERREZ, D-Ill.: It is clear that in America we shouldn’t have laws in which 50 states have 50 different ways of treating immigration policy, especially laws that can only be enforced by making judgments on whether you have dirt on your boots, the color of your skin, the accent of your voice or your last name. That is no way to make law enforcement in the United States of America.
GWEN IFILL: Those were the arguments outside.
For more on how the arguments played out inside the court today, we are joined, as always, by Marcia Coyle of The National Law Journal.
Marcia, in some ways, last time we had a big case at the court, it involved health care, and it was a rematch of the lawyers involved in those two cases.
MARCIA COYLE, The National Law Journal: Yes, it was.
GWEN IFILL: But it couldn’t have been more different.
MARCIA COYLE: Absolutely.
Arizona was represented by Paul Clement, who’s a former solicitor general during the Bush administration. And the United States was represented by its top lawyer, Solicitor General Donald Verrilli. The two men have very different styles. Solicitor General Verrilli is soft-spoken, deliberate, cautious. Mr. Clement is — speaks quickly, very confident, aggressive.
And I — at the end of today’s argument, the chief justice complimented both of them on good arguments.
GWEN IFILL: Let’s talk about this case, because the law that we’re talking about in Arizona has four distinct parts which are under challenge.
Let’s walk through them one by one and what the arguments were. There’s one segment which is about warrantless arrests, the ability of the state or the sheriff or the police to arrest people without showing proof.
MARCIA COYLE: That’s right.
The provision says that if the police officer has probable cause, which is a higher standard than, say, reasonable suspicion, but probable cause to believe that somebody that he has or she has stopped has committed an offense that could result in deportation from the United States, that officer does not need a warrant to arrest that person.
GWEN IFILL: Was that argued at all. . .
MARCIA COYLE: Actually, there was — there was virtually nothing on that provision.
GWEN IFILL: So that’s something which maybe would stand because it wasn’t being challenged. But we don’t want to be predictive.
MARCIA COYLE: No, I wouldn’t read the tea leaves on that one yet.
GWEN IFILL: Okay. The other — another part of the law would require that immigrants carry — legal or illegal — carry I.D.
MARCIA COYLE: Yes.
In fact, two of the provisions create new Arizona crimes. And that provision, that section says that, if an undocumented alien in the country fails to follow federal immigration registration laws — that is, register with the federal government and carry a registration document — it’s a crime punishable by jail time and possibly fines as well.
GWEN IFILL: And this one — and there’s another one, which was about job seekers having to prove. . .
MARCIA COYLE: That’s right. And that one also was discussed during arguments briefly. And that makes it a crime for an undocumented alien to work or to attempt to solicit work in any way.
GWEN IFILL: But at the heart of this argument today really, and what the discussion in the court was, was about this question of suspicion and about under what circumstances a law enforcement official can actually stop and arrest someone.
MARCIA COYLE: Yes, Section 2-B of the law authorizes law enforcement officials, when they stop a person, if they have reasonable suspicion to believe that the person is in the country illegally, then the law enforcement officer — officer is authorized to do an immigration status check.
And that means give the name to federal authorities to run through databases to see if the person is here illegally. There was concern by some justices, such as Justices Sotomayor and Justice Breyer, about the duration of this kind of a stop. Some of the concern is that, okay, maybe you’re stopped for going 10 miles over the speed limit.
How long will you be stopped if the officer wants to do an immigration status check? Because you may be a citizen, as well as you may possibly be an illegal immigrant. And Mr. Clement tried to reassure the justices, saying this status check takes somewhere between 10 and 11 minutes.
Mr. Verrilli countered, well, yes, the actual check may take that long, but, first, you’re put in a queue for about an hour before the check runs. So there is that disagreement there.
GWEN IFILL: But it seemed that more of the justices were raising questions about the federal government’s challenge of this law.
MARCIA COYLE: That’s right.
A number of the justices, including Justices Sotomayor and Justice Breyer, seemed to feel that this was basically a notification law. The police officer has the status of the person stopped checked and then notifies the federal government.
GWEN IFILL: The chief justice said as much.
MARCIA COYLE: He did. He said it looks to me like it doesn’t interfere with the federal government’s enforcement priorities.
In fact, he said to Mr. Verrilli, it seems to me that the federal government doesn’t really want to know who’s legal and who’s illegally in this country.
GWEN IFILL: Is it possible to strike down some portions of this law, uphold other portions of it?
MARCIA COYLE: Absolutely, Gwen.
In fact, my sense of the argument was that they are going to parse each of the four provisions challenged here, and one may withstand scrutiny and some of the others may not. The registration provision, for example, Justice Ginsburg pointed out that it appeared to her that Congress had enacted a comprehensive registration scheme for aliens in this country, and that may well show that the Arizona new crime conflicts with that law.
GWEN IFILL: And there are other states who’ve tried to mimic Arizona who are watching this very closely.
MARCIA COYLE: Yes. There are about six states. Some have even enacted tougher laws. So whatever the court says is going to mean a lot to them.
But I think, in general, what we’ve seen here is this — this is going to be a very important decision for how far states can go in terms of enacting immigration-related statutes. But it’s also an even larger case in this sense that we will see what the boundaries are between federal and state power.
GWEN IFILL: And no matter what, it won’t be a 5-4 decision, because there are only eight justices sitting on this.
MARCIA COYLE: That’s a good point. Justice Kagan recused herself from the case, probably because when she was solicitor general she had some involvement in the lower court litigation.
GWEN IFILL: Okay, Marcia Coyle, National Law Journal, as always, thank you.
MARCIA COYLE: My pleasure, Gwen.