Now that the Supreme Court has heard the case against the Arizona Immigration Law, has it changed your opinion on whether you think it is constitutional or not based on some of the arguments put forth by the Justices?
I have posted a few excerpts below and a link to the full transcript. It is very interesting if you have time to read it.
JUSTICE SCALIA: Anyway, what -- what's wrong about the States enforcing Federal law? There's a Federal law against robbing Federal banks. Can it be made a State crime to rob those banks? I think it is.
GENERAL VERRILLI: I think it could, but I think that's quite -
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.
JUSTICE ALITO: Well, could I ask you this about 2, before you move on to that? How is a -- this is just a matter of information. How can a State officer who stops somebody or who arrests somebody for a nonimmigration offense tell whether that person falls within the Federal removal priorities without making an inquiry to the Federal Government?
For example, I understand one of the priorities is people who have previously been removed, then that might be somebody who you would want to arrest and -- and remove. But how can you determine that without making the -- the inquiry in the first place?
GENERAL VERRILLI: Well, in any individual case, that's correct. You -- you would need to make the inquiry in the first place. It won't always be correct, if you're arresting somebody based on probable cause that they've committed a serious crime, and they -- and they -- the inquiry into whether -- into their status will be enough to identify that person for priority -
JUSTICE ALITO: Well, what if they just, they stop somebody for a traffic violation, but they want to know whether this is a person who previously was removed and has come back, or somebody who's just -- just within the last few hours possibly come -- well, let's just -- somebody who's previously been removed? How can you know that without making an inquiry?
GENERAL VERRILLI: Well, I think -- I think
it's correct that you can't, but there's a -- there's a difference, Justice Alito, I think, between the question of any individual circumstance and a mandatory policy backed by this civil fine, that you've got to make the inquiry in every case.
I mean, I think it's as though -- if I can use an analogy, if you ask one of your law clerks to bring you the most important preemption cases from the last 10 years, and they rolled in the last -- the last
hundred volumes of the U.S. Reports and said, well, they're in there. That -- that doesn't make it -
CHIEF JUSTICE ROBERTS:
What if they just rolled in Whiting?
CHIEF JUSTICE ROBERTS:
That's a pretty good one.
JUSTICE BREYER: Look, in the Federal statute, it says in 1373 that nobody can prohibit or restrict any government entity from making this inquiry of the Federal Government. And then it says that the Federal Government has -- any agency -- and then it says the Federal Government has an obligation to respond.
Now, assuming the statute were limited as I say, so nothing happened to this individual, nothing happened to the person who's stopped that wouldn't have happened anyway, all that happens is the person -- the policeman makes a phone call.
Now that's what I'm trying to get at.
If that were the situation, and we said it had to be the situation, then what in the Federal statute would that conflict with, where we have two provisions that say any policeman can call?
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: 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 it's 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.
Beyond that, I do think, you know, the -- it's worth bearing in mind here that the country of Mexico is in a central role in this situation. Between 60 and 70 percent of the people that we remove every year, we remove to Mexico. And in addition, we have to have the cooperation of the Mexicans. And I think as the Court knows from other cases, the cooperation of the country to whom we are -- to which we are removing people who are unlawfully present is vital to be able to make removal work.
In addition, we have very significant issues on the border with Mexico. And in fact, they're the very issues that Arizona's complaining about in that -
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?
GENERAL VERRILLI: No, Your Honor, but what it does -- no, Your Honor, I'm not saying that -
JUSTICE SCALIA: It sounded like what you were saying.
GENERAL VERRILLI: No, but what I am saying is that this points up why the Framers made this power an exclusive national power. It's because the entire country feels the effects of a decision -- conduct by an individual State. And that's why the power needs to be exercised at the national level and not the State level.
CHIEF JUSTICE ROBERTS: And your concern is the problems that would arise in bilateral relations if you remove all of these people, or a significant percentage or a greater percentage than you are now. Nothing in the law requires you to do that. All it does is lets you know where -- that an illegal alien has been arrested, and you can decide, we are not going to initiate removal proceedings against that individual.
It doesn't require you to remove one more person than you would like to remove under your priorities.