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Supreme Court Hears Immigration Arguments


This is TALK OF THE NATION. I'm Neal Conan.

The Supreme Court heard arguments this morning on SB 1070, the Arizona immigration law, which passed in 2010. The most controversial part of the legislation requires local law enforcement to check the immigration status of people they suspect of being in the United States illegally. The central question before the justices is the extent of the federal government's authority over immigration law. A decision's expected this summer and, like the decision on the health care law, could play a role in the presidential election.

David Savage, Supreme Court correspondent for The Los Angeles Times and The Chicago Tribune, joins us now by phone from his office here in Washington. David, always nice to have you with us.


CONAN: And today might - the justices - obviously, this it their last day of arguments this term, not a low-profile case.

SAVAGE: No, a really big deal. The - this is a very interesting argument. The solicitor general representing the Obama administration had another difficult outing. It seemed like the justices, across the board - from John Roberts to Sonia Sotomayor - seem to think there was no real problem with this stop-and-arrest provision in the Arizona law because as Roberts said, what's the big deal? If you stop somebody for drunk driving, and the Phoenix police officer calls the immigration agent, says, is this fellow an illegal alien, either yes or no, Roberts said, in the end, it's up to the federal government whether they want to detain him and - or possibly deport him.

But why should, you know, what's the problem with the federal government? Don Verrilli said, well, we don't really think it's a good idea to have, you know, local police out there enforcing immigration law, picking on people. But it didn't seem like that argument got any traction. I was surprised that even Justice Sotomayor said, well, if the person can be released, the Feds don't have to hold the person. And in fact, what's the problem?

CONAN: Did the solicitor general make the argument that we've heard from so many, that this is inherently discriminatory, that the great majority of the people in the country illegally are Hispanics, certainly in Arizona, and this is going to amount to a targeted enforcement?

SAVAGE: That's really interesting, Neal. He was prepared to make that argument. But the chief justice did something I don't think I've seen before. He said - before Verrilli could get out his first words, he said, before we get into your case, I want to make clear what this case is not about. You're not going to be here arguing about racial or ethnic profiling, are you? And Verrilli said, well, no, we're not, actually. And Roberts said, OK, good. Now, go ahead. And the reason is that when the Obama administration went to court in Phoenix, they basically said, this conflicts with the federal immigration law.

It's sort of a federal power versus state power. The civil rights groups in Arizona had filed, saying that it's going to lead to racial profiling and discrimination. But all those parts of the argument were put on hold while they battle out this question about federal power versus state power. So the long answer to your short question, Neal, is that the argument really didn't focus on the question of harassment or racial profiling, because the chief justice basically blocked it from the beginning.

CONAN: Sort of a preemptive strike. Is the theory then, that since the Arizona law has not been implemented, nobody's been harmed by it, therefore there's no - we don't know whether there's been racial profiling or not.

SAVAGE: Yes, that's right. Assume - if the court were to uphold most or all the law in June, it would go back to Arizona, and the civil rights groups could and would renew their complaint that this is going to lead to racial profiling of Latinos who are living in Arizona and are citizens. And I should add one other point here - is that this argument was not all bad for the federal government's point of view in one way. It's that John Roberts and Justice Kennedy, among others, seemed to think that other parts of the Arizona law that make it a state crime not to have documents if you're an illegal immigrant or to seek work, that those would be preempted.

They did conflict with federal law, because they were new. And that's potentially very important because those provisions would have allowed Arizona officials to say we're going to hold this guy. We think he's an illegal immigrant, and he doesn't have any documents, so we're going to hold him under state law. And it looked to me like the court may block those provisions and say, yes, immigration is a federal matter, but if all Arizona's doing is sort of telling the feds about people they've stopped, that's OK.

CONAN: Yeah, as you mentioned, there were four parts of the Arizona law that were up at the Supreme Court today: The requirement for police to check the immigration status of anyone detained in the course of their duties and suspected of being in the country illegally. As you mentioned, the requirement for immigrants to carry their papers at all time. A ban on illegal immigrants from soliciting for work and would also allow police to arrest immigrants without a warrant if an officer believe they committed a crime that would make them deportable. So in a sense, those other three parts didn't fare as well as the first?

SAVAGE: Yes. Actually, I think there was not much discussion of the fourth one. But my impression was that they may allow - they may have uphold the parts of the law that says, the police can take somebody into custody and then check with the federal government, that that's OK. But we're not going to allow Arizona have sort of a separate immigration set of laws and enforcement and hold people for what we say are, you know, Arizona crimes. That seem to - John Roberts asked a series of questions that said, putting aside section three and five - which are the things about documents and work - putting aside those, I don't see the problem with this law. And this - the clear implication was that he did understand the problem with the other provisions. So it - I had to guess, I think it's going to be a split decision in June.

CONAN: There are only eight justices hearing this case. Elena Kagan, the former solicitor general, recused herself presumably because she'd done some work on this.

SAVAGE: Yes, that's right. She was not there again today. And if one of the, say, conservative justices, Justice Kennedy, for example, or the chief justice were to vote to put on hold the provisions about work, that would create either a 4-4 split, which would block the provision from going into effect. It would affirm the 9th Circuit. Or they could write an opinion and say this goes too far. But it sure look - I didn't hear anybody who has a solid vote against the stop and arrest provision, which we thought, going into it, was the big and most controversial provision.

CONAN: It's the one that's caught the attention of people across the country. But as we mentioned earlier, this is not likely to be the last word.

SAVAGE: Yes, that's right. It is - this case came up on a preliminary injunction of all things. That is a judge in Phoenix said, this law looks very troubling. I'm going to put it on hold, not allow it to go into effect. Maybe down the road, we'll have a trial. And so that preliminary injunction now, two years, is what's holding the law from going into effect. The Supreme Court could overrule that, lift the preliminary injunction. It would allow the law to go into effect, but it would have also allow the civil rights - civil liberties lawyers to go back to federal court and say, look at the impact this law is having or will have on Latino citizens here in Arizona.

CONAN: There are also any number of states who have adapted similar legislation, not precisely the same, but similar legislation in places like Alabama and Georgia. Would this decision cover them as well?

SAVAGE: I think so. Presuming they do what it sure look like they're going to do today and they write - it would say that states can take action to help enforce the federal immigration laws. That seemed to be the line that most of the justices were comfortable with, that the states can help out by calling the feds and say, hey, look, we've got this guy.

Paul Clement had a terrific example. He said, oh, what a terrible thing it is if you don't call because there was a situation in Arizona where a police officer apparently stopped a fellow who shot him. He turned out to be an El Salvadorian criminal who was wanted for murder in El Salvador, had been stopped several times in Arizona, but they have never checked with federal immigration officials and realize this guy was a very dangerous person. So Paul Clement really cemented the point that, isn't it a good thing to at least check with the federal immigration authorities and see if this guy is, you know, a wanted criminal of some sort?

CONAN: You mentioned Paul Clement, another former solicitor general who's been very prominent in this term arguing the case of - against the government. But there was an expectation that he, on behalf of the state of Arizona and Governor Brewer, would make the argument, we're only doing this because the federal authorities had been lax. They have failed to enforce federal law. And in this emergency, we are required to.

SAVAGE: Yes, he did make that argument at the beginning. He was the former solicitor general in the second Bush administration. It seemed at times, Neal, that he's still in office because it seems like every big case, he's back up there arguing it. But yes, he did make that argument.

And Justice Kennedy and Justice Scalia echoed that point. I mean, Justice Scalia seemed to think, why does the - why do the - why does Arizona even have to deal with the federal government? Why can't they police their own borders? Justice Scalia seemed to incline to go way beyond what even Arizona was asking for and basically say, the - Arizona should be allowed to take action on its own to police its borders. So, yes, that argument got through to them. It doesn't seem like Paul Clement had too hard a time rounding up a majority for the - at least the main provisions of the Arizona law.

CONAN: We're talking with David Savage, the Supreme Court correspondent for The Los Angeles Times and The Chicago Tribune. He was at the high court this morning for oral arguments on the Arizona immigration law. You're listening to TALK OF THE NATION, which is coming to you from NPR News.

And, David, as we mentioned, the last day for arguments in this term of the Supreme Court, but, boy, this is about as big a term for arguments as we've had in a long time.

SAVAGE: Yes, it sure is. And I think what makes these particularly big is because we're in the midst of an election year, and these are cases that are classic. The health care and immigration are classic, sort of political - politically charged cases. In both of them, you have Republican governors, Republican states going to court to challenge an action of the Democratic Obama administration. And so they both have this - not only they're sort of big in, you know, health care and immigration are important themselves. They are very politically charged, where the court's being asked to sort of referee between the Republican governors, who have one view of the law in health care and immigration, and the Democratic administration, which has a quite a different view.

CONAN: In this particular case, the Arizona law, I looked at - I think there were three-score legislators who weighed in on both sides; all Republicans on one side, all Democrats on the other.

SAVAGE: Yes, it is like health care, isn't it? I mean, that once these issues become politicized, it seems like it is a total divide. You almost can't find anybody who's - there's no sort of bipartisan position on some of these. The - I will say, you and some others have alluded to this earlier. It is true that Arizona sort of staked out a really get-tough position on immigration. And even if the Supreme Court were to uphold that, I'm now not so sure that many states would follow suit because there's been, you know, a fair amount of attention, not all good, to Arizona and Alabama for these laws, that there's a lot of business people who think they've hurt the business climate. They've hurt the tourism climate.

And so it is possible that Arizona could win a legal victory here, but it will not seem - it may not seem like such a great victory because no one's going to, perhaps, want to go down that road if it causes a lot of problem for the state - its tourism and its business interest. So Arizona may win, but I'm not necessarily sure now - I think I would've felt differently about it two years from now. I'm not sure many other states would follow its lead.

CONAN: There's also the political question that you mentioned. We've already heard from the Democratic senator from New York, Charles Schumer, who said that if the Supreme Court does uphold - and I think particularly the controversial part of the law, the stop and ask about this, the immigration state as part of the law - that he would introduce legislation that would force Republicans to vote on this. The Democrats see this as a winner, not likely to be a winner in the United States Senate, certainly not in the House of Representatives, but a political issue that might redound to the benefit of the Democrats.

SAVAGE: Yes, I think that's exactly right. I think Schumer knows that they probably couldn't actually pass it in the Senate, but they think that this is more of a winner for the Democrats. It's a troubling issue for some Republicans. They don't want to alienate Latino voters even more than they have, and they know that a lot of business people don't like these crackdowns on illegal immigrants and illegal workers, that they think they've gone a little too far. And so, yes, Schumer wants to bring it up in July or August and let the Republicans cast a vote and make them squirm a little bit.

CONAN: I wonder also, we saw this week the Pew survey come out that suggested that the net number of immigrants in this country illegally has actually gone down, that people are going back to Mexico and other countries, apparently, and I wonder if that came up in arguments today.

SAVAGE: It wasn't discussed. No, it wasn't discussed per se, but it is an interesting question of whether the illegal immigrants - that more people in search of jobs have decided, I'm going to stay in Mexico. The economy in the U.S., the housing market is not good and maybe we better not to try to go. You also, though, wonder whether some of laws, the harsh crackdowns in Alabama and Arizona have also discouraged people from coming or caused them to go back across the border.

It wasn't discussed, but it does seem like that fact, that statistic, would also take the pressure off states to say, you know, do we really want to follow Arizona and go down this road?

CONAN: Two other factors, of course, involved in that, you mentioned the economy and states laws. But the Obama administration has stiffened the border and made it more difficult to cross and more expensive to cross. It's also deported something like a million people, and that could be discouraging.

SAVAGE: Yes, the Obama administration's policy, as you probably know, is that they wanted to tighten the border. They had a near-record number of deportations last year, about 400,000. And I think the president, early on, thought that that would help pave the way for some immigration reform, something like the DREAM Act, that would allow young Hispanics who go on to high school, go to college degree or served in the mili - would allow them sometime to a path toward citizenship. And as you know, that hasn't happened - has not been a movement in Congress to go to down.

But early on, I think President Obama's view was that if we can tighten up the border and deport a bunch of bad guys, you know, drug criminals or whatever, that will allow us to move forward on immigration reform.

CONAN: David Savage, thanks very much for your time. I look forward to your article.

SAVAGE: Thanks, Neal.

CONAN: David Savage, Supreme Court correspondent for The Los Angeles Times and The Chicago Tribune, joined us by phone from his office here in Washington. Tomorrow, Timothy Noah on his new book, "The Great Divergence: America's Growing Inequality Crisis and What We Can Do About It." Join us for that conversation. It's the TALK OF THE NATION from NPR News. I'm Neal Conan in Washington. Transcript provided by NPR, Copyright NPR.