Thursday, April 26, 2012

READ, IN CONTEXT: Focus On Justice Kennedy's Participation In Yesterday's SB1070 Oral Arguments

It is widely accepted that Justice Anthony Kennedy (Reagan appointee, 1988) is the swing vote in the challenge to Arizona's SB1070 illegal immigration enforcement law.  And, it is being widely reported that he and the rest of the Court are ready to rule in Arizona's favor on at least the portion of the law that permits law enforcement to question immigration status of people they detain and have reasonable suspicion that they may be here illegally.

The audio of the oral arguments is not yet available (tomorrow), but Arizona's Politics has reviewed and now presents the portions of the transcript in which Justice Kennedy participated.  And, as a bonus, we present context for the Justice Sotomayor quote about the U.S. government's case "not selling".

Engagement Number 1, beginning page 9, line 5:
MR. CLEMENT: Well, Justice Ginsburg, I
think there's two answers to that. One is, you're
right, sometimes it's a complex inquiry, sometimes it's
a straightforward inquiry.  It could be murder, it could
be a drug crime. But I think the practical answer tothe question is by hypothesis, there's going to be
inquiry made to the Federal immigration authorities,
either the Law Enforcement Support Center or a 287(g)
 And presumably, as a part of that inquiry,
they can figure out whether or not this is a removable
offense, or at least a substantially likely removable
 JUSTICE KENNEDY: Suppose it takes 2 weeks
to make that determination, can the alien be held by the
State for that whole period of time --
MR. CLEMENT: Oh, I don't think --
JUSTICE KENNEDY: -- just under section 6?
 MR. CLEMENT: I don't think so, Your Honor,
and I think that, you know, what -- in all of these
provisions, you have the Fourth Amendment backing up the
limits, and I think so whatever --
JUSTICE KENNEDY: What -- what would be the
standard? You're the attorney for the -- for the alien,
he -- they're going to hold him for 2 weeks until they
figure out whether this is a removable offense. And you
say, under the Fourth Amendment, you cannot hold
for -- what? More than a reasonable time or --
MR. CLEMENT: Yes. Ultimately, it's a
reasonable inquiry. And I think that under these
circumstances, what we know from the record here is that
generally the immigration status inquiry is something
that takes 10 or 11 minutes. I mean, so it's
not -- we're not talking about something -- or no more
than 10 if it's a 287(g) officer, and roughly 11 minutes
on average if it's the Law Enforcement Support Center.
Engagement Number 2, beginning on page 16, line 25:

 JUSTICE SCALIA: And the State has no power
to close its borders to people who have no right to be
 MR. CLEMENT: Well, here -- Justice Scalia,
here's my response, which is all of this discussion, at
least as I've understood it, has been about 2(B), and to
a lesser extent 6.
 Now, section 3 of the statute does provide
an authority under State law to penalize somebody who
has violated essentially the Federal registration
requirement. So if that's -- as to that provision,
there would be a State authority, even under these
hypotheticals, to take action with respect to the
individual --
MR. CLEMENT: -- but not with respect to
the Federal --
JUSTICE KENNEDY: I think Justice Scalia's
question was the -- was the broader one, just as a
theoretical matter. Can we say, or do you take the
position, that a State must accept within its borders a
person who is illegally present under Federal law?
 MR. CLEMENT: Well, and I think the --
JUSTICE KENNEDY: And that is by reason of
his alien issues --
MR. CLEMENT: And I think my answer to that
is no. I think the reason my answer is no has more to
do with our defense of section 3 and other provisions
than it does with respect to the inquiry and arrest
authority provisions, 2(B) and 6.
The third engagement with Clement begins on page 24, line 6:

JUSTICE KENNEDY: Would you agree
that -- would you accept as a working hypothesis that we
can begin with the general principle that the Hines v.
Davidowitz language controls here, and we're going to
ask -- our principal -- our primary function is to
determine whether, under the circumstances of this
particular case, Arizona's law stands as an obstacle to
the accomplishment and execution of the full purposes
and objectives of Congress?
 Is that an acceptable test from your
 MR. CLEMENT: I think it's an acceptable
test. I mean, Justice Kennedy, you know, there
obviously have been subsequent cases, including DeCanas
and Whiting, that give additional shape and color to
that test, but I don't have any -- I don't have any real
quarrel with that test.
 And here's why I don't think that --
JUSTICE KENNEDY: But then the government on
this section is going to come and say, well, there may
be -- this must be -- this -- the enforcement of this
statute, as Arizona describes it, will be in
considerable tension with our -- with our basic
approach. Isn't that what I'm going to hear from the
 MR. CLEMENT: It may be what you're going to
hear, Justice Kennedy, but I don't think you just take
the Federal Government for its word on these things.
 You know, it's interesting, in DeCanas
itself, the SG said that that California statute was
preempted. And in DeCanas, this Court didn't say, well,
you know, we've got this language from Hines, and we
have the SG tell us it's preempted, that's good enough
for us. They went beyond that, and they looked hard.
 And what they did is they established that
this is an area where the presumption against preemption
applies. So that seems one strike in our favor.
We have here a situation where there is an
express preemption provision, and it -- it only
addresses the employer's side of the ledger. So the
express preemption provision clearly doesn't apply here.
 So the only thing they have is this
inference --
Engagement number 4 was a simple one on page 29, line 2:

 JUSTICE KENNEDY: Would double prosecutions
be -- suppose that an alien were prosecuted under
Federal law for violating basically the terms of 3,
could the States then prosecute him as well?
 MR. CLEMENT: I think they could under
general double jeopardy principles and the dual
sovereignty doctrine. Obviously, if that was of
particular concern to you, that might be the basis for
an as-applied challenge if somebody was already
prosecuted under Federal law.
 But, of course, this Court has confronted
exactly that argument in California v. Zook, where you
had the statute of California that prohibited somebody
operating as an interstate carrier without the ICC
license. It was raised -- well, you know, you have to
let just the Feds enforce that law. Otherwise, there's
the possibility of duplicative punishment, duplicative
 And this Court rejected that argument there.
That was the extent of the Kennedy-Clement interactions.  On to the U.S. Solicitor General Donald Verrilli. Their first interaction came on page 44, line 11 (I let it run a little here to show Sotomayor frustration):

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 SOTOMAYOR: I'm sorry. I'm a little
confused. General, I'm terribly confused by your
answer. Okay? And -- and I don't know that you're
focusing in on what I believe my colleagues are trying
to get to.
 Making the -- 2(B) has two components, as I
see it. Every person that's suspected of being an alien
who's arrested for another crime -- that's what
Mr. Clement says the statute means -- the officer has to
pick up the phone and call -- and call the agency to
find out if it's an illegal alien or not.
 He tells me that unless there's another
reason to arrest the person -- and that's 3 and 6, or
any of the other provisions -- but putting those aside,
we're going to stay just in 2(B), if the government
says, we don't want to detain the person, they have to
be released for being simply an illegal alien, what's
wrong with that?
JUSTICE SOTOMAYOR: Taking out the other
provisions, taking out any independent State-created
basis of liability for being an illegal alien.
 GENERAL VERRILLI: I think there are three.
The first is the -- the Hines problem of harassment.
 Now, we are not making an allegation of
racial profiling. Nevertheless, there are already tens
Engagement number two started with Justice Scalia using a humorous bank robber analogy on page 51, line 12:

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 to 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 KENNEDY: -- or does this argument
relate to 2 as well?
 GENERAL VERRILLI: This is an argument about
section 3.

 The third engagement, starting on page 61, line 2, seems to be where Justice Kennedy indicates the most serious reservations with the (federal) government case.  Some significant discussion follows, and it hooks up well with his fourth question, so we'll run an extended segment:

suppose -- well, assume these are two
hypothetical -- two hypothetical instances.
 First, the Federal Government has said we
simply don't have the money or the resources to enforce
our immigration laws the way we wish. We wish we could
do so, but we don't have the money or the resources.
 That's the first -- just hypothetical.
 JUSTICE SCALIA: You said that in your
brief, didn't you?
 JUSTICE KENNEDY: Also hypothetical is that
the State of Arizona has -- has a massive emergency,
with social disruption, economic disruption, residents
leaving the State because of flood of immigrants.
 Let's just assume those two things.
 Does that give the State of Arizona any
powers or authority or legitimate concerns that any
other State wouldn't have?
 GENERAL VERRILLI: Of course, they have
legitimate concerns in that situation. And, Justice
Kennedy --
JUSTICE KENNEDY: And can they go to their
legislature and say, we're concerned about this, and ask
the legislature to enact laws to correct this problem?
GENERAL VERRILLI: They -- they certainly
can enact laws of general application. They can enforce
the laws of general application that are on the books.
They already -- as a result of 8 U.S.C. 1621, it's clear
that they are under no obligation to provide any State
benefits to the population.
 But I think, most importantly, they
can -- and -- not most importantly, but as importantly,
they can engage in cooperative efforts with the Federal
Government --
Excuse me. I see my --
 GENERAL VERRILLI: They can -- they can
engage in cooperative efforts with the Federal
Government, of which there are many going on in Arizona
and around the country, in order to address these
JUSTICE SCALIA: General, didn't you say in
your brief -- I forget where it was -- I thought you
said that the -- the Justice Department doesn't get
nearly enough money to enforce our immigration laws?
 Didn't you say that?
 GENERAL VERRILLI: Of course, we have to set
priorities. There are only --
JUSTICE SCALIA: Exactly. Okay.
So the State says, well, that may be your
priorities, but most of these people that you're not
going after, or an inordinate percentage of them, are
here in our State, and we don't like it. They're
causing all sorts of problems. So we're going to help
you enforce Federal law. We're not going to do anything
else. We're just enforcing Federal law.
 GENERAL VERRILLI: Well, what I think
they're going to do in Arizona is something quite
extraordinary, that has significant real and practical
foreign relations effects. And that's the problem, and
it's the reason why this power needs to be vested
exclusively in the Federal Government.
 What they're going to do is engage,
effectively, in mass incarceration, because the
obligation under section 2(H), of course, is not merely
to enforce section 2 to the fullest possible extent at
the -- at the risk of civil fine, but to enforce Federal
immigration law, which is what they claim they are doing
in section 3 and in section 5.
 And so -- so you're going to have a
situation of mass incarceration of people who are
unlawfully present. That is going to raise -- poses a
very serious risk of raising significant foreign
relations problems.
And these problems are real. That is the
problem of reciprocal treatment of
United States citizens in other countries.
 JUSTICE KENNEDY: So you're saying the
government has a legitimate interest in not enforcing
its laws?
 GENERAL VERRILLI: No. 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 -- the balance of
interest that has to be achieved in enforcing the -- 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 and public safety.
And, that is the extent of Justice Kennedy's participation in the arguments yesterday.  Here's Justice Sotomayor expressing her frustration, on page 56, line 9:

GENERAL VERRILLI:  ...And I think you have to -- so I don't think
you can read into 1373 the -- the conclusion that what
Congress was intending to do was to shift from the
Federal Government to the States the authority to set
enforcement priorities, because I think the cooperation
in this context is cooperation in the service of the
Federal enforcement.
 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?
 GENERAL VERRILLI: So let me just summarize
what I think the three are, and then maybe I can move on
to sections 3 and 5.
      With respect to -- with respect to 2, we
think the harassment argument -- we think this is a more
significant harassment problem than was present in
Hines --
JUSTICE SOTOMAYOR: Please move more --
GENERAL VERRILLI: With respect to -- in
addition, we do think that there is a structural
accountability problem in that they are enforcing
Federal law but not answerable to the Federal officials.
 And third, we do think there are practical
impediments, in that the -- the result of this is to
deliver to the Federal system a -- a volume of inquiries
that makes it harder and not easier to identify who the
priority persons are for removal.
 So those are the three reasons.
 CHIEF JUSTICE ROBERTS: General, you have
been trying valiantly to get us to focus on section 3,
so maybe we should let you do that now.
 GENERAL VERRILLI: Thank you, Mr. Chief

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