http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-182.pdf
IN THE SUPREME COURT OF THE UNITED STATES - No. 11-182
ARIZONA, ET AL.,
Petitioners
v.
UNITED STATES
Washington, D.C.
Wednesday, April 25, 2012
JUSTICE SCALIA: You'll concede that the --
that the State has to accept within its borders all
people who have no right to be there, that the Federal
Government has no interest in removing?
JUSTICE SCALIA: And the State has no power
to close its borders to people who have no right to be
there?
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?
CHIEF JUSTICE ROBERTS: Before you get into
what the case is about, I'd like to clear up at the
outset what it's not about. No part of your argument
has to do with racial or ethnic profiling, does it? I
saw none of that in your brief.
GENERAL VERRILLI: That's correct
CHIEF JUSTICE ROBERTS: Okay. So this is
not a case about ethnic profiling.
GENERAL VERRILLI: We're not making any
allegation about racial or ethnic profiling in the case.
JUSTICE SOTOMAYOR: General, could you
answer Justice Scalia's earlier question to your
adversary? He asked whether it would be the
Government's position that Arizona doesn't have the
power to exclude or remove -- to exclude from its
borders a person who's here illegally.
GENERAL VERRILLI: That is our position,
Your Honor. It is our position because the Constitution
vests exclusive authority over immigration matters with
the national government.
JUSTICE SCALIA But if, in fact, somebody who does not belong
in this country is in Arizona, Arizona has no power?
What does sovereignty mean if it does not include the
ability to defend your borders?
JUSTICE SCALIA: But it's still up to the
national government. Arizona is not trying to kick out
anybody that the Federal government has not already said
do not belong here. And the Constitution provides --
even -- even with respect to the Commerce Clause -- "No
State shall without the consent of Congress lay any
imposts or duties on imports or exports except," it
says, "what may be absolutely necessary for executing
its inspection laws."
The Constitution recognizes that there is
such a thing as State borders and the States can police
their borders, even to the point of inspecting incoming
shipments to exclude diseased material.
JUSTICE SCALIA: Do you have any example
where -- where enforcement discretion has the effect of
preempting state action?
CHIEF JUSTICE ROBERTS: Exactly. The
Federal Government has to decide where it's going to use
its resources.
And what the state is saying, here are
people who are here in violation of Federal law, you
make the decision. And if your decision is you don't
want to prosecute those people, fine, that's entirely up
to you.
That's why I don't see the problem with
section 2(B).
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 And given that you have a population in
Arizona of 2 million Latinos, of whom only 400,000 at
most are there unlawfully -- in fiscal year 2009,
there were 80,000 inquiries.
CHIEF JUSTICE ROBERTS: Under 2(B), the
person is already stopped for some other reason... So that decision to stop the individual has
nothing to do with immigration law at all... It seems to me that the Federal Government
just doesn't want to know who is here illegally or not
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.
It contains 1357(g), which effectively says
that Federal -- that the Federal Government, the
Attorney General, can deputize state officials, so long
as they're -- they obtain adequate training and they are
subject to the direction and control of the Attorney
General in carrying out immigration functions.
...harassment argument...
JUSTICE SCALIA: Again, I ask you, do you
have any other case in which the basis for preemption
has been you are interfering with the Attorney General's
enforcement discretion?
JUSTICE SCALIA: General, didn't you say in
your brief -- I forget where it was -- I thought you
said that the Justice Department doesn't get nearly
enough money to enforce our immigration laws? Didn't
you say that?
JUSTICE SCALIA: General, didn't you say in
your brief -- I forget where it was -- I thought you
said that the Justice Department doesn't get nearly
enough money to enforce our immigration laws? Didn't
you say that?
GENERAL VERRILLI: Well, a couple of things.
First is, I don't think it's realistic to assume that
the aggressive enforcement of sections 3 and 5 in
Arizona is going to lead to a mass migration back to
countries of origin. It seems a far more likely outcome
is going to be migration to other States. And that's a
significant problem. That's part of the reason why this
problem needs to be managed on a national basis
JUSTICE SCALIA: So we have to -- we have to
enforce our laws in a manner that will please Mexico.
Is that what you're saying?
MR. CLEMENT The last thing I'll say about the
enforcement provision, since I do think that the
Government's rather unusual theory that something that's
okay when done ad hoc becomes preempted when it's
systematic, I think that theory largely refutes itself.
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.
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.