By Gabriel J. Chin and Marc L. Miller. Chin is a Professor of Law at the University of California, Davis, School of Law, and Miller is Vice Dean and Bilby Professor of Law at the University of Arizona, James E. Rogers College of Law. See “SB1070 in the Supreme Court,” their pre-oral argument analysis for ACSblog.
The argument in the SB1070 case went 20 minutes over its scheduled hour. Most of the justices' questions addressed Section 2, which requires local police to investigate the immigration status of anyone stopped by the police who they suspected of being undocumented.
Justices Kennedy and Scalia each asked the fundamental question of whether “a state must accept within its borders a person who is illegally present under federal law.” Paul Clement answered no, frankly claiming for the states the powers of deportation and border control.
Justice Scalia agreed.
This question is at the heart of the case. All provisions of SB1070 are roundabout ways of forcing undocumented aliens to leave. If Arizona has direct regulatory authority over illegal immigration, they need not operate indirectly; Arizona should just pass a law requiring the undocumented to leave, punishing them if they refuse.
Arizona did not do this because it doubts it has that power. Such a claim would be at odds with the traditional approach, as represented, for example, by Chief Justice Burger, joined by Justices White, Rehnquist & O’Connor dissenting in Plyler v. Doe,who wrote: “A state has no power to prevent unlawful immigration, and no power to deport illegal aliens; those powers are reserved exclusively to Congress and the Executive.”
But if states do not have the power to regulate directly, then, as Mr. Clement recognized when answering this question, their claim to be able to do so indirectly is undermined.
In the modern electronic glow that seeks to cast major cases into six word headlines and sound bites, many commentators have observed that the justices supported Section 2. It was common ground among the justices and counsel that an officer acting on her own (rather than by statutory mandate) may question a suspect about immigration status, at least so long as it does not prolong a detention.
But looking at the exchanges between the Justices and the advocates, a more nuanced picture emerges.
Chief Justice Roberts told the Solicitor General, for instance, that investigating immigration status of arrestees “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.” He also noted that foreign policy problems may arise from prosecutions under other sections "[b]ut not [Section] 2."
In other words, the Chief Justice suggested that Section 2 left enforcement (or prosecutorial) discretion entirely in the hands of the federal government -- something that would not be important if the state could arrest or punish removable aliens for their immigration status even if the federal government did not want to prosecute in a particular case.
Notably, Justice Breyer defended Section 2 on grounds that Justice Sotomayor pointed out may rarely exist in the real world. Justice Breyer asked several times whether Section 2 would be constitutional “so long as it is interpreted to mean that the policeman . . . cannot detain the person for longer than he would have done in the absence of this provision.”
But the Solicitor General, responding to Justice Sotomayor, stated that “the average time” it takes to get a response from the federal hotline “is 70 minutes.” In most stops, then, under current conditions, there will be no way to get an answer to the question of immigration status without additional detention beyond what would be justified by the initial basis for the stop. Thus, the circumstances in which Justice Breyer believes Section 2 would be valid may rarely exist. If the Court upholds Section 2 against a facial challenge under Justice Breyer’s rationale, it may have the practical effect of leaving the injunction in place.
In connection with Section 3, criminalizing failure to register under federal law, Justice Scalia repeatedly asked the Solicitor General “do you have any other case in which the basis for preemption has been you are interfering with the Attorney General’s enforcement discretion?”
The Solicitor General had no answer, but there are two important cases: Pennsylvania v. Nelson, holding that states could not prosecute sedition committed against the United States, and In re Loney, holding that states could not prosecute perjury committed against the United States.
Also in connection with Section 3, Justice Kennedy also asked whether a prosecution by the federal government for failure to register would preclude a subsequent state prosecution. Mr. Clement argued that it would not, because of the dual sovereignty doctrine.
This is consistent with his contention that states have sovereign authority to regulate immigration. One of us has written that there would be a double jeopardy problem with a successive state-federal prosecution.
And since the defendant might have unlawfully entered the United States outside of Arizona, and thus violated federal law outside Arizona, upholding Section 3 would allow each state to regulate conduct in the entire United States.
Mr. Clement made a concession which, if accepted, moots Section 3 entirely. He stated that “it is not a violation” of the federal statutes “to not get a registration document when you’re somebody who can’t get one.” In an amicus brief, a distinguished expert wrote that there is no way for undocumented people to register under the law at issue -- the registration forms and rules are aimed at authorized immigrants and visitors.
Section 6, authorizing arrests of removable aliens, may be invalid to the extent those arrests are not at the federal government’s request. For the Chief Justice and other members of the court willing to acknowledge that the Attorney General’s prosecutorial discretion over immigration cases is important, this qualification could be a path to saving Section 6. The Court could say a facial challenge fails because, as the SG acknowledged, states may arrest at the request of federal authorities.
Justices who continue to believe that the ultimate decision to prosecute or punish an individual for violation of immigration laws is a federal power may also question Sections 3 and 5, authorizing prosecutions in state courts by state officers for state-created immigration related crimes, state fines, and punishment in state prisons.
Two points notable by their absence were the idea of grace (or, more awkwardly individual, or situation, amnesty), and the history and practice of general amnesty.
The justices seemed to assume that laws are on the books to be enforced. Justice Kennedy at one point asked the Solicitor General whether “the government has a legitimate interest in not enforcing its laws.”
“Prosecutorial discretion” is one important answer to this question. But there is a more specific answer in the immigration context. For individuals, current immigration laws provide multiple paths for undocumented individuals to be allowed to remain in the United States, or to be removed without criminal sanction, or even to become citizens.
This point was emphasized in the briefs, which pointed out that the Immigration and Nationality Act contains no principle that simply because someone is undocumented and apprehended by federal authorities, that person must leave the country. Instead, there are a range of civil and criminal sanctions and relief provisions which, by their nature, cannot all be applied to a single person. In particular, the INA contains provisions for asylum, and visas for some undocumented people.
Amnesty has been a defining theme in the history of American immigration law. Six times between 1893 and 1986, Congress passed laws allowing those unlawfully present in the United States to stay. Some may not like this practice, but none can deny that it has consistently been a tool of federal immigration policy, as Richard Boswell explains. Adam Cox & Eric Posner have written that it may even be desirable.
Critics of the law argued that one of the flaws of SB1070 was that it proposes to imprison people who the United States might allow to stay. It is remarkable that both the conservative and liberal justices thought this argument was either so compelling or so ludicrous that it was not worth a question to either side. It would be consistent with their statements to conclude that the Chief Justice believes the former while Justice Scalia believes that latter.
We make no predictions. But the rich complexity of United States v. Arizona reflected in the history of this law and this case, and in the briefs and literature, remains alive after the oral argument.