I almost feel sorry for the current Solicitor General, who needs to make ludicrous arguments in front of the Supreme Court, repeatedly. Even Breyer and Sotomayor point out how silly the arguments are (they are at the end of this post):
JUSTICE ALITO: Well, suppose that every -- suppose every law enforcement officer in Arizona saw things exactly the same way as the Arizona legislature. And so, without any direction from the legislature, they all took it upon themselves to make these inquiries every time they stopped somebody or arrested somebody.
Would that be a violation of Federal law?
GENERAL VERRILLI: No, it wouldn't be, Your Honor, because in that situation they would be free to be responsive to Federal priorities, if the Federal officials came back to them and said, look, we need to focus on gangs, we need to focus on this drug problem at the border --
JUSTICE ALITO: But what if they said, well,we don't care what your priorities are; we have our priorities, and our priority is maximum enforcement, and we're going to call you in every case? It was all done on an individual basis, all the officers were individually doing it –
GENERAL VERRILLI: Yes, well –
JUSTICE ALITO: -- that would be okay?
GENERAL VERRILLI: Well, if there's a – if there's a state policy locked into law by statute,locked into law by regulation, then we have a problem. If it's not –
JUSTICE SOTOMAYOR: General –
GENERAL VERRILLI: -- I mean, the line is mandatory versus discretionary --
JUSTICE ALITO: That's what I can't understand because your argument -- you seem to be saying that what's wrong with the Arizona law is that the Arizona legislature is trying to control what its employees are doing, and they have to be free to disregard the desires of the Arizona legislature, for whom they work, and follow the priorities of the Federal Government, for whom they don't work.
GENERAL VERRILLI: But they -- but with respect to immigration enforcement, and to the extent all they're doing is bringing people to the Federal Government's attention, they are cooperating in the enforcement of Federal law --
JUSTICE KENNEDY: But the hypothetical is that that's all the legislature is doing.
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 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: -- it would ameliorate the practical problem; but, there is still a structural problem here in that this is an effort to enforce Federal law. And the -- under the Constitution, it's the President and the Executive Branch that are responsible for the enforcement of Federal law –
CHIEF JUSTICE ROBERTS: It is –
GENERAL VERRILLI: -- and –
CHIEF JUSTICE ROBERTS: It is not an effort to enforce Federal law. It is an effort to let you know about violations of Federal law. Whether or not to enforce them is still entirely up to you. If you don't want to do this, you just tell the person at LESC -- if that's the right -- is that the right acronym?
GENERAL VERRILLI: It is, Mr. Chief Justice.
CHIEF JUSTICE ROBERTS: -- LESC, look, when somebody from Arizona calls, answer their question, and don't even bother to write it down. Okay? I stopped somebody else, is he legal or illegal, let me check -- it's, oh, he's illegal. Okay, thanks, good-bye. I mean, why -- it is still your decision. And if you don't want to know who is in this country illegally, you don't have to.
GENERAL VERRILLI: That's correct. But the process of -- the process of cooperating to enforce the Federal immigration law starts earlier, and it starts with the process of making the decisions about who to -- who to stop, who to apprehend, who to check on. And the problem -- the structural problem we have is that those decisions -- in the making of those decisions, Arizona officials are not free --
CHIEF JUSTICE ROBERTS: Under 2(B), the person is already stopped for some other reason. He's stopped for going 60 in a 20. He's stopped for drunk driving. So that decision to stop the individual has nothing to do with immigration law at all. All that has to do with immigration law is the -- whether or not they can ask the Federal Government to find out if this person is illegal or not, and then leave it up to you. It seems to me that the Federal Government just doesn't want to know who is here illegally or not.
GENERAL VERRILLI: No, I -- I don't think that's right. I think we want to be able to cooperate and focus on our priorities. And one thing that's instructive in that regard, Mr. Chief Justice, are the declarations put into the record by the police chiefs from Phoenix and Tucson, both of whom I think explain effectively why S.B. – the section 2(B) obligation gets in the way of the mutual effort to -- to focus on the priorities of identifying serious criminals so that they can be removed from the country.
JUSTICE SCALIA: Anyway, what -- what's wrong about the states enforcing Federal law? There is a Federal law against robbing Federal banks. Can it be made a state crime to rob those banks? I think it is.
GENERAL VERRILLI: I think it could, but I think that's quite --
JUSTICE SCALIA: But does the Attorney General come in and say, you know, we might really only want to go after the professional bank robbers? If it's just an amateur bank robber, you know, we're -- we're going the let it go. And the state's interfering with our -- with our whole scheme here because it's prosecuting all these bank robbers.
GENERAL VERRILLI: Well, of course, no one would –
JUSTICE SCALIA: Now, would anybody listen to that argument?
GENERAL VERRILLI: Of course not.
JUSTICE SCALIA: Of course not.
GENERAL VERRILLI: But this argument is quite different, Justice Scalia, because here what we are talking about is that Federal registration requirement in an area of dominant Federal concern, exclusive Federal concern with respect to immigration, who can be in the country, under what circumstances, and what obligations they have –
JUSTICE KENNEDY: Now, are you talking about 3 now or –
JUSTICE ALITO: Well, could I ask you this about 2, before you move on to that? How is a – this is just a matter of information. How can a state officer who stops somebody or who arrests somebody for a nonimmigration offense tell whether that person falls within the Federal removal priorities without making an inquiry to the Federal Government? For example, I understand one of the priorities is people who have previously been removed, then that might be somebody who you would want to arrest and -- and remove. But how can you determine that without making the -- the inquiry in the first place?
GENERAL VERRILLI: Well, in any individual case, that's correct. You -- you would need to make the inquiry in the first place. It won't always be correct, if you're arresting somebody based on probable cause that they have committed a serious crime, and they -- and they -- the inquiry into whether -- into their status will be enough to identify that person for priority –
JUSTICE ALITO: Well, what if they just, they stop somebody for a traffic violation, but they want to know whether this is a person who previously was removed and has come back or somebody who has just -- just within the last few hours possibly come -- well, let's just -- somebody who's previously been removed? How can you know that without making an inquiry?
GENERAL VERRILLI: Well, I think -- I think it's correct that you can't, but there is a -- there is difference, Justice Alito, I think, between the question of any individual circumstance and a mandatory policy backed by this civil fine, that you've got to make the inquiry in every case.
JUSTICE BREYER: Look, in the Federal statute, it says in 1373 that nobody can prohibit or restrict any government entity from making this inquiry of the Federal Government. And then it says that the Federal Government has -- any agency -- and then it says the Federal has an obligation to respond. Now, assuming the statute were limited as I say, so nothing happened to this individual, nothing happened to the person who's stopped that wouldn't have happened anyway, all that happens is the person – the policeman makes a phone call. Now that's what I'm trying to get at. If that were the situation, and we said it had to be the situation, then what in the Federal statute would that conflict with, where we have two provisions that say any policeman can call?
JUSTICE 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?