I'm sure everybody remembers the top-notch job Verrilli did attempting to defend the PPACA ("Obamacare"). He isn't getting any better with practice.
The esteemed Justices grilled Mr. Clements with several hard questions regarding statutory and procedural applications of AZ SB1070. The primary concerns rested in three portions of the bill.
FOR ANY LAWFUL CONTACT MADE BY A LAW ENFORCEMENT OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE WHERE REASONABLE SUSPICION EXISTS THAT THE PERSON IS AN ALIEN WHO IS UNLAWFULLY PRESENT IN THE UNITED STATES, A REASONABLE ATTEMPT SHALL BE MADE, WHEN PRACTICABLE, TO DETERMINE THE IMMIGRATION STATUS OF THE PERSON. THE PERSON'S IMMIGRATION STATUS SHALL BE VERIFIED WITH THE FEDERAL GOVERNMENT PURSUANT TO 8 UNITED STATES CODE SECTION 1373(c).
Section 3, which makes being an illegal alien a misdemeanor crime of Trespassing unless further aggravating allegations also exist (such as criminal property damage, murder, narcotics trafficking, sex-slavery, etc.)
And Section 5, which makes it a state crime (misdemeanor) to seek employment if an illegal alien, a state crime to hire illegal aliens, a state crime to offer safe haven to illegal aliens, and a state crime to transport illegal aliens.
Mr. Clements posed the arguments that the state law does not preempt federal law. It requires police to check immigration status of anybody suspected of being in the country illegally. The federal law already states that any state or local law enforcement activity can request that status check and that the federal government must, within a reasonable time, respond. The state law further states that the local law enforcement officers, upon finding that determination from the federal agency, inform the federal enforcement officials that there is an illegal alien in their custody. It is then up to the office of the Attorney General to decide if they will prosecute or deport on the immigration offense. If they choose not to take action, if the detainee is suspected of other crimes, they can still face prosecution of violation of those other crimes, like, say, murder or drunk driving.
Those two crimes are specifically stated. Robert Krentz, an Arizona rancher, was assassinated by illegal aliens. Less than a year after his murder, his wife was struck, outside her church, by a drunk driver. Yes, that drunk driver was also determined to be an illegal alien.
There are quotes from the transcript of the oral arguments below. You can read the whole transcript here.
In his rebuttal (after SG Verrilli stumbled through his oral arguments) Clements also cited an example of how a so-called amnesty zone (The City of Phoenix) failed to do any status checks (emphasis mine):
And so if you preclude officers, as happened in Phoenix, from communicating with the Federal Government, the Federal Government will not be able to identify the worst of the worst. And if you want an example of this, look at the declaration of Officer Brett Glidewell at Joint Appendix 183 to 186. He pulled somebody over in a routine traffic stop and was shot by the individual.
Now, the individual it turns out was wanted for attempted murder in El Salvador and was also guilty of illegal reentry into the United States. He was stopped on three previous occasions and his status was not verified. Now, if it had been, he certainly would have been apprehended. In at least two of the stops, his immigration status wasn't checked because of the city policy, City of Phoenix.
Attempting to state his case, Verrilli continuously tripped himself up. He stated that no state has the right to parallel prosecution of federal laws. Justice Kennedy then proposed that same argument in regards to bank robbery, a federal crime. Verrilli immediately backtracked attempting to say the two were not equal arguments. However, the USSC ruled years ago that a state could prosecute for bank robbery (and other federal laws) if the federal government decided not to prosecute on the federal level.
Verrilli, several times, iterated that he was not making an argument that SB1070 allowed for racial profiling. Of course, he would have a hard time with that argument since USC allows for such methods as racial profiling on the federal level. However, Verrilli does still try to frame his arguments around the large ethnic Mexican population in Arizona. So who is making this about race?
Justice Scalia poked at Verrilli with a few comments based in common sense and reason:
JUSTICE SCALIA: Well, can't you avoid that particular foreign relations problem by simply deporting
these people? Look, free them from the jails --
GENERAL VERRILLI: I really think --
JUSTICE SCALIA: And send them back to the countries that are -- that are objecting.
GENERAL VERRILLI: This is a --
JUSTICE SCALIA: What's the problem with that?
Even Justice Sotomeyer was taken aback at Verrilli's arguments.
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?
JUSTICE SOTOMAYOR: General, when -- when --I know your brief, you had -- you said that there are some illegal aliens who have a right to remain here. And I'm just realizing that I don't really know what happens when the Arizona police call the Federal agency. They give the Federal agency a name, correct?You can hear the whole session here:
GENERAL VERRILLI: I assume so, yes.
JUSTICE SOTOMAYOR: You don't really have knowledge of what --
GENERAL VERRILLI: Well, they -- I mean, it can come in lots of different ways, but generally they will get a name and some other identifying information.
Oral arguments are not a final determination of how the USSC will rule. The date for the decision and opinions is not yet set in this case. However, looking at the questions and responses, it appears that the majority of AZ SB1070 will be upheld, including most of those sections and amendments stricken down by the 9th Circuit Court.