The US Supreme Court gave state officials some reason to believe that part of its immigration law might actually be upheld as legal.
The hearing involves the Obama administration's challenge to SB 1070. Much of the argument centered around the most controversial section which says when police officers have stopped someone, they must try to check that person's immigration status if there is reason to believe he or she is in this country illegally. U.S. Solicitor General Donald Verrilli said that runs afoul of federal law. But Justice Samuel Alito said that same federal law already allows individual officers, on their own, to call federal immigration authorities to make such a check. Alito questioned why Arizona lawmakers cannot mandate that of the people who work for them. Paul Clement, the attorney hired by Gov. Jan Brewer to defend the law, also noted that even if federal officials respond that someone is an illegal immigrant, it is up to them whether to come and get that person. And if federal agents are uninterested, the person goes free.
"They retain the ultimate decision about who to prosecute federally and who to remove from this country," said Clement after the court hearing. "And the principal provision of the Arizona law that was discussed today really just puts the federal officials in the position to know who they have in the country and then decide for themselves what to do as a matter of federal law."
But Verrilli pointed out that SB 1070 has other provisions, including making state crimes for undocumented workers to see employment and for those in this country illegally to not possess certain federal documents. Verrilli said these are the exclusive power of the federal government. And he said the Arizona law itself says its stated goal is to -- quote -- make attrition through enforcement the public policy of all state and local governments in Arizona. It also says the provisions -- quoting again -- are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States. Verrilli said SB 1070 could result in mass incarceration by the state of the estimated 400,000 illegal immigrants in Arizona, people who the federal government has decided not to make priorities to pursue. Brewer herself did nothing to undermine that contention.
"I would assume that there would be incarcerations if in fact they had broken the law on the first offense," Brewer told the press outside the high court. "I don't know if it would be massive. Some of the federal administration discredits the fact that there are that many illegals in Arizona."
Verrilli, who did not talk with reporters after the hearing, said such mass incarceration could lead to foreign relations problems Justice Antonin Scalia said there's a simple answer to that: Deport them back to their home country. As the justices were hearing the case, hundreds of demonstrators gathered at the foot of the courthouse steps, most of them assailing SB 1070 over whether the law amounted to racial profiling. But Clement said that is not the issue before the court.
"This isn't a case about profiling," he said, "this isn't really a case about the Fourth Amendment. It's really a case about the preemption and the relationship between the federal law and the state law."
But Brewer insisted that the decision by the Obama administration to file suit two years ago is more about politics than all those legal issues.
"This is an election year," the governor said. "And I do believe that it was staged at the time, that they knew that this was coming up. And they're playing to the Latino community. And they're trying to use that scare card, if you will, to generate support for elections."
And Brewer, who became governor in 2009 after her predecessor quit, denied that her own decision to sign SB 1070 in 2010 had anything to do with her bid that year to gain a full term of her own.