Arizona v. United States (11-182)
argument 11-182Arizona v. United States
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We'll hear argument this morning in case eleven one hundred eighty two Arizona versus the United States. Mr. Clement. May it please the court. The state of Arizona bears a disproportionate share of the costs of illegal immigration. In addressing those costs, Arizona borrowed the federal standards as its own. and attempted to enlist State resources in the enforcement of the uniform federal immigration laws. Notwithstanding that, the United States took the extraordinary step of seeking a preliminary injunction to enjoin the statute as impliedly preempted on its face before it took effect. The Ninth Circuit agreed with respect to four provisions, but only by inverting fundamental principles of federalism.
The Ninth Circuit essentially demanded that Arizona point to specific authorization in federal statute for its approach. But that gets matters backwards. A state does not need to point to federal authorization for its enforcement efforts. Rather, the burden is on the party seeking to preempt a duly enacted state law to point to some provision in statutory law that does the preempting. The United States can't really do that here, and the reason is obvious. There are multiple provisions of the Federal Immigration Law that go out of their way to try to facilitate state and local efforts to communicate with Federal immigration officials in order to ascertain the immigration status of individuals. So, for example, thirteen seventy three C specifically requires that Federal immigration officials shall respond.
to inquiries from state and local officials about somebody's immigration status. thirteen seventy three A goes even further. That provision says that no federal agency or officer may prohibit or in any way restrict the ability of State and local officers to communicate with Federal immigration officers to ascertain somebody's immigration status. Indeed, if the DHS comment could I interrupt and and turning to two B. Could you tell me what the state's view is? The government proposes that it should be read on its face one way. And I think the state is arguing that there's a narrower way to read it. But am I to understand that under the state's position in this action, The only time that the inquiry about the status of an individual rises is after they've had probable cause to arrest that individual for some other crime.
That's exactly right, Justice Sotomayor. So this only operates when somebody has been essentially stopped for some other infraction. And then at that point, if there is reasonable suspicion to try to identify immigration status, then that can happen. Of course, one of the things that can I can I just stop you there just one moment. That's what I thought. So Presumably I think your argument is that under any circumstance a police officer would have the discretion to make that call. Seems to me that the issue is not about whether you make the call or not, although the government is arguing that it might be. but on how long you detain the individual. Meaning Was I understand it when individuals are arrested and held for other crimes.
Often there's an immigration check that most states do without this law. And to the extent that the government wants to uh remove that individual, they put in a warrant of detainer. This process is different. How is it different? Well it's different in one important respect, Justice Sotomayor, and that's why I don't think that the issue that divides the parties is only the issue of how long you can detain somebody. Because I think the federal government takes the rather unusual position that even though these stops and these inquiries, if done on an ad hoc basis, become preempted if they're done on a systematic basis. No, I understand that's their argument. I can question them about that. Okay. position that doing it on a systematic there's nothing wrong with doing it
As it's been done in the past, whenever anyone is detained, a call could be made. What I see as critical is the issue of how long And under and when is the officer going to exercise discretion to release the person?
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