During oral arguments before the high court on the law – which allows state police to check the immigration status of individuals stopped, detained or arrested for other reasons – Solicitor General Donald Verrilli responded to Justice Antonin Scalia’s remarks that Arizona seems to be merely enacting laws that are already federal statutes.
“Well, what I think they are going to do in Arizona is something quite extraordinary, that has significant real and practical foreign relations effects,” Verrilli said. “And that's the problem, and it's the reason why this power needs to be vested exclusively in the federal government.”
Verrilli said Arizona’s “Support Our Law Enforcement and Safe Neighborhoods Act” takes that power away from the government and gives it to the state.
“And so – so, you’re going to have a situation of mass incarceration of people who are unlawfully present,” he argued. “That is going to raise – poses a very serious risk of raising significant foreign relations problems.
“And these problems are real,” Verrilli continued. “It is the problem of reciprocal treatment of the United States’ citizens in other countries.”
Justice Anthony Kennedy responded: “So you’re saying the government has a legitimate interest in not enforcing its laws?”
“No,” Verrilli replied. “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 balance of interest that has to be achieved in enforcing 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 …”
Of two million Latinos in Arizona, Verrilli told the court, “only 400,000 at most are there illegally.”
Scalia suggested that the government could take action to prevent the incarceration of illegal aliens.
“Well, can’t we avoid that particular foreign relations problem by simply deporting these people?” Scalia asked. “Look, free them from the jails.”
During the one-hour session both conservative and liberal justices seemed skeptical of the government’s case. Justice Sonia Sotomayor, who was nominated by President Obama and is the first Hispanic to serve, told Verrilli at one point that she was “terribly confused” by his remarks.
“It seems to me that the federal government just doesn’t want to know who’s here illegally,” commented Chief Justice John Roberts.
Attorney Paul Clement, arguing on behalf of Arizona, said the Ninth Circuit federal court decision that set in motion the case coming before the Supreme Court was “inverting fundamental principles of federalism.”
Arizona Governor Jan Brewer signed SB 1070 into law two years ago. Several groups, including the Department of Justice, challenged the law in court.
Only eight justices will decide the case since Justice Elena Kagan recused herself because of her work on immigration during her tenure as Solicitor General.
The court is expected to rule on the case by the end of its current term this summer. Alabama, Georgia, South Carolina, Indiana and Utah have proposed or enacted similar legislation.