will watch to see what the supreme court does today. c-span is outside of the court and we will take a look now at the supreme court as we await decisions on a number of decisions. 10:00 is the time when the justices will start announcing which cases they have decisions on. we will watch that this thank you for joining us on "washington journal" today. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2012] >> good morning.

>> what type of nation would become? dear lord, i pray for all those who are sick and are hurting. we know this piece of unconstitutional legislation is not going to get us there. i pray for those who have terminal diseases, genetic diseases. they are too expensive to keep around. pray for us today.l

pray for the nation. >> ♪ amazing grace how sweet the sound that spared a retch like me i once was lost foundw i'm amazing grace how sweet the sound

that saved a retch like me i once was lost found ♪i'm >> heavenly father, we come to you in humility -- >> over 60% of people in massachusetts -- people are artificially hold in their incomes down so they can get

subsidies. they still cannot afford to get health insurance. that is wrong. that's bad for our country. we want affordable, guaranteed health care. take out over 65 and expand medicare for everybody in the country. that is a system we can work with. especially coming from the democrats. and the free riders. this is ridiculous. they know -- >> good morning. all eyes are awaiting the supreme court's final week in session and the decision on the healthcare law and also arizona

versus the united states, the immigration law. the court is probably in session at 10:00 a.m. there is a decision in one case. this is the 5-4 holds in the eighth amendment forbids -- that is the first case out of the courts. we're awaiting word on others. we'll continue to watch the plaza of the supreme court. the crowd is gathered out there . will share more information with you -- we will share more information when we hear it. >> hold on, give me a second.

>> hey, hey, ho, ho obamacare has got to go. hey, hey, ho, ho -- [singing] partyet's have a a constitution party received a flag is flying -- we lying highag is fflyin it makes me proud

hey let's have a party a constitution party you see the statue of liberty she means a lot to me see the statue of liberty she means a lot to me hey -- let's have a party constitution party ♪

♪ jesus stands for freedom ♪ >> the first thing that comes up. then if we have to dumb it down and just go with medication. i spend more and more of providingnot o actual therapy to my patients. i know that it doesn't have to be that way.

one of those positions -- i represent thousands and thousands of physicians. people cannot afford to take a day off of work and join us. it.tired and wary of effective january 1, i will be providing psychiatric care in new zealand. they do not have the perfect health care system but it is a sane health care system. in new zealand, they argue about what is there. we have a mockery of an argument about freedom. an argument about corp

orization. i'm just done with it. i devisee to move to england or new zealand -- i advisee to mo you to move. >> yeah. >> right now we understand the justice alito is ali reading from the consent. whether it violates the prohibition on cruel and unusual punishment. that was a 5-4 decision. we await word on whether there will be another case announced today. we will keep watch and you know

as soon as that happens. >> ok.

>> not too bad right now. >> stop the war! stop the war! stop the war. stop the war. stop the war on women. stop the war on hate. stop the war on women.

stop the war on hate. >> it is a little warm. >> and human rights. people often asked, do we believe in health care? we do not believe in health care and that forces americans to violate -- president obama's healthcare legislation -- pay for abortions.

have a strong view and strong deeply held values on why it would thwart and mandate them? what kind of health care would force americans to violate the most decent -- this has never happened in the history of america. >> the dean of reporters is inside. justice alito is still reading from his dissent. the question over life without parole sentence for juvenile is . the court decided 5-4.

the court this week traditionally talks about the cases that granting -- cases it will be hearing in the future. justices announcing their intent to retire. no word on any retirements. we are awaiting the next ruling from the court today on this monday. let me tell you about some cases. whether lawsuits under the real estate settlement procedure act which allows homeowners to sue banks when they pay kickbacks for closing on mortgages are constitutional, whether they are constitutional.

also awaiting the decision on u.s. v. alvarez. this was heard on february 22, 2012. whether it it is a crime to lie about receiving military honors it violates the first amendment. there are several healthcare cases and arizona v. united states which requires police officers to check on the immigration status on anyone who makes arrests. we continue watching the scene at the court.

>> how is it going ? >> all right. how about you. >> no health care today? >> there will not be a health- care decision this morning. the other decision is in the arizona v. united states case on the arizona law requiring that police check immigration status of anyone who they arrest. justice kennedy announcing that decision. just is kagan -- justice kagan -- the

court found it was improper for a lower court's to enjoin section 2b. a major part of the arizona law invalidated by the court. this is the ninth circuit decision that was affirmed in part and the second and only decision from the supreme court today. there will be other decision days this week. we will be there until we know the outcome of the health-care decision. we'll take your reactions once the results are known.

>> we will end our live coverage from the supreme court on this monday morning. we will be back later this

week, wednesday or thursday to keep watch on the supreme court. right now we're going to bring you coverage of the oral argument in the major case decided today, arizona v. united states. the court upheld a portion of it and invalidated other portions. more details will become known later. major parts of the law were overturned by the court. we will listen to the oral arguments. thank you for being with us. >> we'll hear argument this morning in case 11--182, arizona v. the united states. mr. clement. >> mr. chief justice, and 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 mattersbackwards. -- but that it matters backwards. a state does not need to point to federal authorization for its enforcement efforts. rather, the burden is on the parties seeking to preempt a duly enacted state law to point to some provision in statutory

law that does the preempting. now, 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, 1373(c) specifically requires that federal immigration officials shall respond to inquiries from state and local officials about somebody's immigration status. 1373(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 had -- >> mr. clement -- >> yes. >> -- could i interrupt, and turning to 2(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. so this only operates when somebody's been essentially stopped for some other infraction, and then at that point, if there's reasonable suspicion to try to identify immigration status, then that can happen. of course, one of the things that -- >> can i -- can i -- >> sure. >> -- 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 theindividual, meaning -- the individual meaning -- as 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 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, 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. but -- so that's -- >> but i want to get to how --

assuming your position, that doing it on a -- 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? >> and with respect, i don't think section 2(b) really speaks to that, which is to say, i don't think section 2(b) says that the systematic inquiry has to take any longer than the ad hoc inquiry. and, indeed, section 2, in one of its provisions, specifically says that it has to be implemented in a way that's consistent with federal, both immigration law and civil rights law. so, there -- what -- >> what happens if -- this is the following call -- the call to the -- to the federal government. yes, he's an illegal alien. no, we don't want to detain him. what does the law say, the arizona law say, with respect

to releasing that individual? >> well, i don't know that it speaks to it in specific terms, but here's what i believe would happen, which is to say, at that point, then, the officer would ask themselves whether there's any reason to continue to detain the person for state law purposes. i mean, it could be that the original offense that the person was pulled over needs to be dealt with or something like that. >> i'm putting all of this outside of -- >> but -- but if what we're talking about is simply what happens then for purposes of the federal immigration consequences, the answer is nothing. the individual at that point is released. and that, i think, can be very well illustrated by section 6 -- i don't want to change the subject unnecessarily, but there's an arrest authority for somebody who's committed a public offense, which means that it's a crime in another state and in arizona, but the person can't be arrested for that offense, presumably because they've already served their sentence for the offense; and then there's new arrest authority given to the officer to hold that person if they are deportable for that offense. now, i think in that circumstance, it's very clear what would happen, is an inquiry would be made to the

federal officials that would say, do you want us to transfer this person to your custody or hold this person until you can take custody? and if the answer is no, then that's the end of it. that individual is released, because there's no independent basis in that situation for the state officer to continue to detain the individual at all. >> but how would the state officer know if the person is removable? i mean, that's sometimes a complex inquiry. >> well, justice ginsburg, i think there's two answers to that. one is, you're right, sometimes it's a complex inquiry, sometimes it's a straightforward inquiry. it could be murder, it could be a drug crime. but i think the practical answer to the question is by hypothesis, there's going to be an inquiry made to the federal immigration authorities, either the law enforcement support center or a 287(g) officer. and presumably, as a part of that inquiry, they can figure out whether or not this is a removable offense, or at least a substantially likely removable offense.

>> suppose it takes 2 weeks to make that determination, can the alien be held by the state for that whole period of time -- >> oh, i don't think -- >> -- just under section 6? >> i don't think so, your honor, and i think that, you know, what -- in all of these provisions, you have the fourth amendment backing up the limits, and i think so whatever -- >> what -- what would be the standard? you're the attorney for the -- for the alien, he -- they're going to hold him for 2 weeks until they figure out whether this is a removable offense. and you say, under the fourth amendment, you cannot hold for -- what? more than a reasonable time or -- >> yes. ultimately, it's a reasonable inquiry. and i think that under these circumstances, what we know from the record here is that generally the immigration status inquiry is something that takes 10 or 11 minutes. i mean, so it's not -- we're not talking about something -- or no more than 10 if it's a 287(g) officer, and roughly 11 minutes on average if it's the law enforcement support center. >> how do they have -- well, the same question, but -- but i'm trying to think of examples. example one is the person is arrested. now, it says any person who is

arrested shall have the person's immigration status determined before the person is released. so i wonder if they've arrested a citizen, he's hispanic-- looking, he was jogging, he has a backpack, he has water in it and pedialyte, so they think, oh, maybe this is an illegal person. it happens he's a citizen of new mexico, and so the driver's license doesn't work. and now they put him in jail. and are you -- can you represent to us -- i don't know if you can or not -- can you represent to us he will not stay in jail, in detention, for a significantly longer period of time than he would have stayed in the absence of section 2(b)? do you want to represent that or not? >> i don't want to represent that. what i do want to represent -- >> all right. now, if you cannot represent that -- and i'm not surprised you don't want to -- i mean, i don't know -- >> sure, sure. but what i can represent -- >> what? >> -- is that he's not going to be detained any longer than the fourth amendment allows. >> oh, fine. >> and -- but, well -- >> but the fourth amendment --

for -- i mean, that's another question. i don't know how long the fourth amendment allows. i don't know on that. there probably is a range of things. but we do know that a person ordinarily, for this crime, x, would have been released after a day. oh, you know, the fourth amendment would have allowed more. so now what i want to know is what in practice will happen? from your representation, i think that there will be a significant number of people -- some of whom won't be arrested; it takes 11 minutes for some. for citizens, it might take 2 hours, it might take 2 days. okay. there'll be a significant number of people who will be detained at the stop, or in prison, for a significantly longer period of time than in the absence of 2(b). is that a fair conclusion? >> i don't think it is, and here's why it's not. because even though there certainly are situations where state authorities will arrest somebody and then release them relatively rapidly, they generally don't release

somebody until they can nail down their identity, and whether or not they are likely to come to a court hearing at a subsequent event -- >> anyway, if this is a problem, is it an immigration law problem? >> it -- >> or is it a fourth amendment problem? >> justice scalia, it is neither -- >> is the government's attack on this that it violates the fourth amendment? >> no. of course, the federal government, that also has a lot of immigration arrests that are subject to the fourth amendment, is not making a fourth amendment claim here. and it's neither an immigration law concern or something that should be the basis for striking down a statute on its face -- >> that's a different argument -- >> but i do want to -- but i do want to be responsive and make the point that i think the factual premise that this is going to -- 2(b) is going to lead to the elongation of a lot of arrests is not true. >> all right. can i make the following statement in the opinion, and you will say that's okay? imagine -- this is imaginary. "we interpret" -- imagine -- "we interpret section 2(b) as not authorizing or requiring

the detention of any individual under 2(b), either at the stop or in prison, for a significantly longer period of time than that person would have been detained in the absence of 2(b)." can i make that statement in an opinion, and you'll say, that's right? >> i think what you could say -- >> can i say that? >> i don't think you can say just that. >> no. >> i think you can say something similar, though. i think you probably could say, look, this is a facial challenge. the statute's never gone into effect. we don't anticipate that section 2(b) would elongate in a significant number of cases the detention or the arrest. i think you could say that. and the reason is, as i indicated, it's something that happens even without this law that, when you arrest somebody, and there are some offenses that are -- you can arrest and release under state law, but before you release the individual, you generally want to ascertain that that individual is going to show up at the hearing. and that's what really

distinguishes those cases where there's arrest and release from those cases where there's arrest and you book somebody. now, here's the other reason why i don't think factually, this is going to elongate things. because already in a significant number of booking facilities in arizona, you already have the process that people are systematically run through immigration checks when they are booked as part of the booking process. that's reected in the record here in the maricopa county system, that that's done by a 287(g) officer as a matter of routine. the federal government doesn't like this statute, but they're very proud of their secure communities program. and their secure communities program also makes clear that everybody that's booked at participating facilities is -- eventually has their immigration status checked. and so i don't think that this immigration status check is likely to lead to a substantial elongation of the stops or the detentions. now, obviously -- >> i want to make sure that i get a clear representation from

you. if at a call to the federal agency, the agency says, we don't want to detain this alien, that alien will be released or -- unless it's under 6, is what you're telling me. or under 6, 3, or some -- one other of arizona's immigration clauses. >> exactly. obviously, if thisis somebody -- if this is somebody who was going, you know, 60 miles an hourn a 20-mile-an-hour school zone or something, they may decide wholly apart from the immigration issue that this is somebody they want to bring back to the station. but for the purposes of once they make the contact with federal immigration officials, if the federal immigration officials say, look, we have no interest in removing this person, we have no interest in prosecuting this person under the federal criminal provisions, then that's the end of the federal case of the -- >> all right. then tell me -- >> so you'll -- 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? >> no, i don't accept that, justice scalia, but -- >> that's all the statute -- and you call up the federal government, and the federal -- yes, he's an illegal immigrant, but that's okay with us. >> well -- >> and the state has no powerto close its borders to people who have no right to be there? >> well, here -- justice scalia, here's my response, which is all of this discussion, at least as i've understood it, has been about 2(b), and to a lesser extent 6. now, section 3 of the statute does provide an authority under state law to penalize somebody who has violated essentially the federal registration requirement. so if that's -- as to that provision, there would be a state authority, even under these hypotheticals, to take action with respect to the individual -- >> i think -- >> -- but not with respect to the federal -- >> 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? >> well, and i think the -- >> and that is by reason of his alien issues -- >> and i think my answer to thatis no. o that is no. i think the reason my answer is no has more to do with our defense of section 3 and other provisions than it does with respect to the inquiry and arrest authority provisions, 2(b) and 6. >> well, before you move on to the registration requirement, could i take you back to an example that's similar to the one that >> was referring to. let's someone -- let's say someone who is a citizen and a resident of new mexico, has a new mexico driver's license, drives across the border, is stopped for speeding, not 60 miles an hour in a 20--mile zone, but 10 miles over the speed limit on an interstate. and the officer, for some reason, thinks that this person may be an illegal alien. how would that work out? if you do the records check, you're not going to get anything back, right, because the person is a citizen. so what -- where would the

officer take it from there? >> well, if i can just kind of work back for a second. i mean, obviously, it's a pretty unusual circumstance where somebody produces an out-- of--state driver's license, and that doesn't dispel reasonable suspicion for the officer. but, i'll take the hypo that -- >> why would it dispel reasonable suspicion if it's -- if the officer knows it's a state that issues drivers' licenses to aliens who are not lawfully -- >> and that might be a situation where that's the case, and then -- then it wouldn't dispel the reasonable suspicion. but, say, in the average case, i think it would. they would then go further. and then they would then make the inquiry to the federal officials. and then if -- because of the fact that the individual actually is a citizen or something like that, then what would happen is at some point, you'd get to the end of a permissible terry stop, and the officer would release the individual. now, it might not be the end of the matter, because, of course, you know, they still have the name, they still have the ability to collect that information and try to continue the check as they move forward, taking down the information on the new mexico driver's license. but i think the important thing

is that, you know, this statute doesn't authorize them to detain the individual, certainly beyond the -- the fourth amendment limits. and it really doesn't authorize them to do anything that the official couldn't do on an ad hoc basis without the statute. now, it does do -- >> that may be the case, and i would like to ask general verrilli about that. but, under the fourth amendment, presumably, if the officer can arrest, the state officer can arrest a person simply on the ground that the person is removable, which is what the office of legal counsel opined some years ago, then presumably the officer could continue to detain that individual that i mentioned until they reached a point where the terry stop becomes an arrest, at which time, they would have to have probable cause. but if they had probable cause to believe the person was removable, then they could hold the person, presumably, until the -- the person's status was completely verified. isn't that correct? >> i think that's correct, your

honor. now, as we read section 6, because there's a pre--existing definition of "public offense" in arizona law, we don't think this is kind of the full office of legal counsel situation, where you have broad arrest authority for removable individuals. this is a relatively narrow slice of additional arrest authority that happens to give arrest authority for people that seem to fit the federal government's priority, because it really is going to apply to criminal aliens. but i don't -- i don't take any issue with what you're saying. i do think, though, it's important to understand that 2(b) really doesn't give the officer an authority he didn't otherwise have. it does do one thing that's very important, though, which it does have the effect of overriding local policies that actually forbade some officers from making those communications and -- because that's one of the primary effects of 2(b). it just shows how difficult the government's preemption argumentment is here, because

those kind of local policies are expressly forbidden by federal statute. 1373(a) and 8 u.s.c. 1644 basically say that localities can't have those kind of sanctuary laws. and so one effect that 2(b) has is on a state level, it basically says, look, you can't have local officers telling you not to make those inquiries, you must have those inquiries. >> counsel, could -- does section 6 permit an officer to arrest an individual who has overstayed a visitor's visa by a day? they're removable, correct? >> they are removable. i don't think they would have committed a public offense -- absent a very unusual situation, i don't think they would have committed a public offense under arizona law. so i don't think there actually would be arrest authority in that circumstance, as justice alito's question has -- has -- >> what is the definition of public offense? >> a public offense definition -- it's actually -- it's a petition appendix -- well, i'm sorry. the definition is basically that it's something that is a

crime in another jurisdiction and also a crime in arizona. and so what makes this kind of anomalous is normally, if something is a crime in arizona, there's arrest authority for that directly. so what this really captures is people who have committed a crime are no longer arrestable for the crime because they have served their sentence or some other peculiarity, but they're nonetheless removable because of the crime. >> counsel, maybe it's a good time to talk about some of the other sections, in particular, section 5(c). now, that does seem to expand beyond the federal government's determination about the types of sanctions that should govern the employment relationship. you talk about supply and demand. the federal government, of course, prohibits the employment, but it also imposes sanctions with respect to application for work. and the state of arizona, in this case, is imposing some significantly greater sanctions. >> well, it's certainly imposing different sanctions. i mean, you know, it's a little bit -- kind of hard to weigh the difference between removability, which is obviously

a pretty significant sanction for an alien, and the relatively modest penalties imposed by section 5(c). but i take the premise that 5(c) does something that there's no direct analog in federal law. but i -- but that's not enough to get you to preemption, obviously. and one of the things that makes 5(c), it seems to us, a weak case for preemption is that it only targets employment that is expressly forbidden by federal law. and so then we look at, you know, essentially, the government is reduced to arguing that because in 1986 when congress passed irca, it only focused on the employer's side of the equation and didn't, generally speaking, impose restrictions on employees, that somehow they're going to draw a preemptive inference from that. >> counsel -- >> would you agree that -- would you accept as a working hypothesis that we can begin with the general principle that the hines v. davidowitz language controls here, and we're going to ask -- our

principal -- our primary function is to determine whether, under the circumstances of this particular case, arizona's law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of congress? is that an acceptable test from your standpoint? >> i think it's an acceptable test. i mean, justice kennedy, you know, there obviously have been subsequent cases, including decanas and whiting, that give additional shape and color to that test, but i don't have any -- i don't have any real quarrel with that test. and here's why i don't think that -- >> but then the government on this section is going to come and say, well, there maybe -- this must be -- this -- the enforcement of this statute, as arizona describes it, will be in considerable tension with our -- with our basic approach. isn't that what i'm going to hear from the government? >> it may be what you're going to hear, justice kennedy, but i don't think you just take the federal government for its word on these things. you know, it's interesting, in decanas itself, the sg said that that california statute was

preempted. and in decanas, this court didn't say, well, you know, we've got this language from hines, and we have the sg tell us it's preempted, that's good enough for us. they went beyond that, and they looked hard. and what they did is they established that this is an area where the presumption against preemption applies. so that seems one strike in our favor. we have here a situation where there is an express preemption provision, and it -- it only addresses the employer's side of the ledger. so the express preemption provision clearly doesn't apply here. so the only thing they have is this inference -- >> well, for those of us for whom legislative history has some importance, there seems to be quite a bit of legislative history that the -- that the idea of punishing employees was raised, discussed and explicitly rejected. >> sure. >> the preemption language would be geared to what was decided to be punished. it seems odd to think that the federal government is deciding on employment sanctions and has

unconsciously decided not to punish employees. >> but, there's a big difference between congress deciding not as a matter of federal law to address employees with an additional criminal prohibition, and saying that that decision itself has preemptive effect. that's a rather remarkable additional step. and here's why i think, if you consider the legislative history -- for those who do, it really supports us -- because here's what congress confronted. i mean, they started thinking about this problem in 1971. they passed irca in 1986. at that point, here's the state of the world. it's already unlawful, as a matter of federal law, for the employee to get -- to have this unlawful work. and if they seek this unlawful work, they are subject to removal for doing it. in addition, congress was told that most of the aliens who get this unlawful work are already here -- they illegally entered, so they're already subject to an independent criminal offense. so at that point, congress is facing a world where the employee is already subject to multiple prohibitions. the employer is completely

scot--free as a matter of federal law. and so at that point, in 1986, they address the employer's side of the equation, they have an express preemption provision that says nothing about any intent of preempting the employee's side of the ledger. and in that, i don't think -- >> but they did provide -- i mean, your position was the federal legislation regulates the supply side. that leaves the demand side open. but there is regulation, and the question is whether anything beyond that is inconsistent with the federal -- it's not just that the person is removable, but if they use false documents in seeking work, that's a federal crime. so we have the -- what you call the supply side is -- is regulated, but you want to regulate it more. >> two quick responses, and

then i'd like to save time for rebuttal, justice ginsburg.the first is that if you look at what they regulate on the employee's side, it's really things that actually assist in regulating the employer's side. because what they're worried about is a fraudulent document that then is used essentially to trick the employer into employing somebody who shouldn't be employed. the second thing is, the more that you view irca as actually regulating part of the employee's side, then i think the more persuasive it is that the express preemption provision doesn't reach the employee's side of the equation. >> we'll give you plenty of rebuttal time, but i'd like to hear what you have to say about section 3 before you sit down. >> thank you, mr. chief justice. i appreciate the opportunity to do that. i do think as to section 3, the question is really -- it's a provision that is parallel to the federal requirements, and imposes the same punishments as the federal requirement. so it's generally not a fertile ground for preemption. but of course, there are cases

that find preemption even in those analogous circumstances. they're the cases that the government is forced to rely on. cases like buckman, cases like -- >> would double prosecutions be -- suppose that an alien were prosecuted under federal law for violating basically the terms of 3, could the states then prosecute him as well? >> i think they could under general double jeopardy principles and the dual sovereignty doctrine. obviously, if that was of particular concern to you, that might be the basis for an as-- applied challenge if somebody was already prosecuted under federal law. but, of course, this court has confronted exactly that argument in california v. zook, where you had the statute of california that prohibited somebody operating as an interstate carrier without the icc license. it was raised -- well, you know, you have to let just the feds enforce that law. otherwise, there's the possibility of duplicative punishment, duplicative prosecution. and this court rejected that argument there. >> mr. clement, it seems that the -- i would think the largest hurdle for you is hines,

which said the registration scheme -- congress enacted a complete registration scheme which the states cannot complement or impose even auxiliary regulations. so i don't see the alien registration as a question of obstacle preemption, but appeal preemption that alien -- we don't want competing registration schemes. we want the registration scheme to be wholly federal. >> well, justice ginsburg, i think that's part of the reason why i accepted justice kennedy's characterization of the relevant language in hines, because although there's some general discussion there of field preemption, when the court actually states what its holding is, it does state it in terms of obstacle preemption. and here's where i think there's a critical difference between what the court had before it in hines and what you have before you here.

in hines, pennsylvania passed its statute before congress passed the alien registration statute. so not surprisingly, you know, they weren't -- they weren't soothsayers in pennsylvania. they couldn't predict the future. so when it got up here, there was a conflict between the provisions of the pennsylvania registration law and the federal registration law. and this court struck it down on that preemption basis. here, it's quite different. arizona had before it the federal statute. it looked at the preciseprovisions in the federal statute. -- it looked at the precise provisions. it adopted those standards as its own, and then it imposed parallel penalties for the violation of the state equivalent. and so i think the right analysis is really the analysis that this court laid out in its whiting decision, which says that in these kinds of cases, what you look for is whether or not the state scheme directly interferes with the operation of the federal scheme. >> can i ask you something? >> well, in that instance -- >> justice alito. >> in that regard, we are told that there are some important categories of aliens who can't obtain registration, cannot

obtain federal registration, and yet they're people that nobody would think should be removed. i think someone with a pending asylum application would fall into that category. how would section 3 apply there? >> i think it probably wouldn't apply. there's two provisions that might make it inapplicable. the first question you'd ask is whether that individual in that category would be subject to prosecution under 1304 and 1306. and if i understand, you know, the government's position, there are certain people where, you know, they can't really get a registration document because of the narrow class that they're in. and as i understand it, it is not a violation of either 1304 or 1306 to not get a registration document when you're somebody who can't get one. so you're not liable for the willful failure to get a registration document, and when you don't have a registration document to carry, you don't run afoul of 1306 on the carry -- >> well, of course, if you've entered the country illegally, you can't get a registration. >> well, sure.

>> but -- >> but that's not the narrow class we were talking about. >> no, i understand that. i didn't understand the distinction you were drawing, that you can't be prosecuted for lack of a registration if you couldn't have gotten a registration. >> well, if you're in -- no, if you're in the country lawfully, i mean, you can try to register. and so somebody who enters illegally -- i mean, they're already guilty of one federal misdemeanor by the illegal entry. >> right. >> but at the point that they stay 30 days and don't try to register, then that's an independent violation. so maybe i need to fix what i said and say, look, if you're somebody who -- if you did go to register, would be told: you're fine, but we can't give you a registration document, then that individual's not subject to prosecution under the federal statute, therefore wouldn't be subject to prosecution under the state statute. >> thank you, mr. clement. general verrilli. >> mr. chief justice, and may it please the court: >> 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. >> that's correct. >> okay. so this is not a case about ethnic profiling. >> we're not making any allegation about racial or ethnic profiling in the case. mr. clement is working hard this morning to portray s.b. 1070 as an aid to federal immigration enforcement. but the very first provision of the statute declares that arizona is pursuing its own policy of attrition through enforcement, and that the provisions of this law are designed to work together to drive unlawfully present aliens out of the state. that is something arizona cannot do, because the constitution vests exclusive -- >> 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. >> that is our position, your honor. it is our position because the constitution vests exclusive authority over immigration matters with the national government. >> well, all that means, it gives authority over naturalization, which we've expanded to immigration. but all that means is that the government can set forth the rules concerning who belongs in this country. but if, in fact, somebody who does not belong in this country is in arizona, arizona has -- has no power? what -- what does sovereignty mean if it does not include the ability to defend your borders? >> your honor, the framers vested in the national government the authority over immigration because they understood that the way this nation treats citizens of other countries is a vital aspect of our foreign relations. the national government, and not an individual state -- >> 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 -- look, 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. >> but they cannot do what arizona is seeking to do here, your honor, which is to elevate one consideration above all others. arizona is pursuing a policy that maximizes the apprehension of unlawfully present aliens so they can be jailed as criminals

in arizona unless the federal government agrees to direct its enforcement resources to remove the people that arizona has identified. >> well, if that state does -- well, that's a question of enforcement priorities. well, let's say that the government had a different set of enforcement priorities, and to the maximum extent possible the borders. and so anyone who is here something about. in other words, different than the current policy. does that mean in that not be preemptive? >> i think the mandatory character of the arizona law and the mandatory character of the obligations it imposes, especially as backed by this extraordinary provision in section 2(h), which imposes civil penalties of up to $5000 a day on any official in the state of arizona who is not following section 2 or, as we

read it, the rest of s.b. 1070, to the maximum extent possible, does create a conflict. but i do think the most 2 is to understand itssection 2 is in the statute to identify the class of people who arizona is then committed to prosecute under section 3, and if they are employed, also under section 5. >> well, i have the same question as the chief justice. suppose that the federal government changed its priorities tomorrow, and it said -- they threw out the ones they have now, and they said the new policy is maximum enforcement. we want to know about every person who's stopped or arrested, we want to -- we want their immigration status verified. would the arizona law then be un--preemptive? >> no, i think it's still a problem, your honor. these decisions have to be made at the national level because it's the national government and not -- it's the whole country and not an individual state that pays the price -- >> do you have any example where -- where enforcement

discretion has the effect of preempting state action? >> well, i think we should think about section 3 of the law, your honor. i think it will help illustrate the point -- >> i'll point out another case of ours where we've said that essentially the preemption of state law can occur, not by virtue of the congress preempting, but because the executive doesn't want this law enforced so -- so rigorously, and that preempts the state from enforcing it vigorously. do we have any cases -- >> i think the preemption here -- focusing for a moment on section 3 -- the preemption here flows from judgments of congress, from the registration system that congress set up in sections 1301 through 1306, from the decision of congress in section 1103 in the law to vest the secretary of dhs and the attorney general with the authority to make the judgments about how this law is going to be enforced -- >> well, they do that with all -- all federal criminal statutes. and you acknowledge that as a general matter, states can enforce federal criminal law,

which is always entrusted to the attorney general. >> they -- they can make --they can engage in detention, in support of the enforcement of federal law. that's what the olc opinion from 2002 says. it does not say that they can prosecute under federal law and make their own decisions. that's a far different matter. and it really goes to the heart, i think, of what's wrong with section 3 of this act, in that -- >> well, but you say that the federal government has to have control over who to prosecute, but i don't see how section 2(b) says anything about that at all. all it does is notify the federal government, here's someone who is here illegally, here's someone who is removable. the discretion to prosecute for federal immigration offenses rests entirely with the attorney general. >> that's correct, but, with respect to -- and i will -- let me address something fundamental about section 2. that is true, but i -- i think it doesn't get at the heart of the problem

here. the -- section 1 of this statute says that sections 2 and 3 and 5 are supposed to work together to achieve this policy of attrition through enforcement. and so what section 2 does is identify a population that the state of arizona is going to prosecute under section 3 and section 5 -- >> right. so, apart from section 3 and section 5, take those off the table, you have no objection to section 2? >> we do, your honor. but, before i take 3 and 5 off the table, if i could make one more point about 3 and 5, please? the -- i think --because i think it's important to understand the dilemma that this puts the federal government in. arizona has got this population, and they've -- and they're, by law, committed to maximum enforcement. and so the federal government's got to decide, are we going to take our resources, which we deploy for removal, and are we going to use them to deal with this population, even if it is to the detriment of our priorities -- >> exactly. you -- 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). >> here's the other half -- here's the other half of the equation, mr. chief justice, which is that they say, if you're not going to remove them, we are going to prosecute them. and that means that the -- and i think this does get at the heart of why this needs to be an exclusive national power -- >> only under section 3 and section 5. >> yes, but those are -- but what you're talking about is taking somebody whose --whose only offense is being unlawfully present in the country and putting them in jail for up to 6 months, or somebody who -- >> well, let's say you're worried about -- >> or like 30 days, forgive me. 6 months for employment. >> right. for the notification, what could possibly be wrong, if arizona arrests someone, let's say for drunk driving, and their policy is you're going to stay in jail overnight, no matter what, ok? what's wrong, during that period, by having the arizona arresting officer say, i'm

going to call the federal agency and find out if this person is here illegally because the federal law says the federal agency has to answer my question. it seems an odd argument to say the federal agency has to answer the state's question, but the state can't ask it. >> well, we're not saying the individual case. we -- we recognize that section -- >> you think there are individual cases in which the state can call the federal government and say, is this person here illegally? >> yes, certainly, but that doesn't make -- >> ok. so doesn't that defeat the facial challenge to the act? >> no. i don't think so, mr. chief justice, because the -- i think the problem here is in that -- is in every circumstance, as a result of section 2(b) of the law, backed by the penalties of section 2(h), the state official must pursue the priorities that the state has set, irrespective of whether they are helpful to or in conflict with the federal priorities. and so -- >> well, suppose that every -- suppose every law enforcement

officer in arizona saw things exactly the same way as the arizona legislature. and so, without any direction from the legislature, they all took it upon themselves to make these inquiries every time they somebody. federal law? your, it wouldn't be, honor, because, in that situation, they would be free to be responsive to federal priorities, if the federal officials came back to them and said, look, we need to focus on gangs, we need to focus on this drug problem at the border -- >> but what if they said, well, we don't care what your priorities are; we -- we have our priorities, and our priority is maximum enforcement, and we're going to call you in every case? it was all done on an individual basis, all the officers were individually doing it -- >> well -- yes, well -- >> that would be ok? >> well, if there's a -- if there's a state policy locked into law by statute, locked into law by regulation, then we have a problem. if it's not -- >> general, i am having -- >> i mean, the line is mandatory versus discretionary -- >> 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. >> but they -- but, with respect to immigration enforcement, and to the extent all they're doing is bringing people to the federal government's attention, they are cooperating in the enforcement of federal law -- >> but the hypothetical is that that's all the legislature is doing. >> well, except i think, justice kennedy, the problem is that it's not cooperation if, in every instance, the officers in the state must respond to the priorities set by the state respond to the priorities of the federal officials who are trying to enforce the law in the most>> i'm sorry. i'm a little confused -- general, i'm terribly confused by your

answer. ok? and -- and i don't what i believe my colleagues are trying to get to. making the -- 2(b) has two components, as i see it. every person that's suspected of being an alien who's arrested for another crime -- that's what mr. clement says the statute means -- the officer has to pick up the phone and call -- and call the agency to find out if it's an illegal alien or not. he tells me that, unless there's another reason to arrest the person -- and that's 3 and 6, or any of the other provisions -- but putting those aside, we're going to stay just in 2(b), if the government says, we don't want to detain the person, they have to be released for being simply an illegal alien, what's wrong with that? >> well -- >> taking out the other provisions, taking out any independent state-created basis of liability for being an -- an illegal alien?

>> i think there are three. the first is the -- the hines problem of harassment. now, we are not making an allegation of racial profiling; nevertheless, there are already tens of thousands of stops that result in inquiries in arizona, even in the absence of sb 1070. it stands to reason that -- that the legislature thought that that wasn't sufficient and there needed to be more. and it -- given that you have a population in arizona of 2 million latinos, of whom only 400,000, at most, are there unlawfully, there -- >> sounds like racial profiling to me. >> and they're -- and given that what we're talking about is the status of being unlawfully present, which -- >> do you have the statistics as to how many arrests there are and how many -- and what the -- statute? >> there is some evidence in the record, your honor. it's the -- the palmatier declaration, which is in the joint appendix, was the --he was the fellow who used the run the law

enforcement support center, which answers the inquiries. that --that declaration indicates that, in 80,000 inquiries and -- >> what does this have to do with federal immigration law? i mean, it may have to do with -- with racial harassment, but i that. >> the -- >> are you objecting to harassing the -- the people who have no business being here? is that -- surely, you're -- you're not concerned about harassing them. they have been stopped anyway, and all you're doing is calling up to see if they are illegal immigrants or not. so you must be talking about other people who have nothing to do with -- with our immigration laws. ok? citizens and -- and other people, right? >> and other -- and other people lawfully present in the country, certainly, but this is -- >> but that has nothing to do with the immigration law -- >> hines is -- >> which is -- which is what you're asserting preempts all of this activity. >> hines identified this problem as harassment as -- as a central feature of preemption under the immigration laws

because of the concern that the way this nation treats citizens of other countries is fundamental to our foreign relations. and this is a>> well, let's -- let me just go back because i think -- i'm trying to get focused the question, i think, others are asking. and one way to focus it is the same question i asked mr. clement. think of 2(b), the first sentence. all right? now, i can think -- i'm not saying they are right -- but, if that means you're going to hold an individual longer than you would have otherwise, i can think of some arguments that it is preempted and some replies. so keep that out of it. suppose that we were to say, that sentence, as we understand it, does not raise a constitutional problem as long as it is interpreted to mean that the policeman, irrespective of what answer he gets from ice, cannot detain the person for longer than he would have done in the absence of this

provision. now, in your view, is there any preemption exemption -- argument against -- any preemption argument against that sentence as i have just interpreted it? i and that's why i'm asking. >> yes. i -- we would think it would ameliorate -- >> and if so, what? >> it would ameliorate the practical problem. but there is still a structural problem here in that this is an effort to enforce federal law. and the -- under the constitution, it's the president and the executive branch that are responsible for the enforcement of federal law -- >> it is -- >> and -- >> it 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. if you don't want to do this, you just tell the person at lesc -- if that's the right -- is that the right acronym? >> it is, mr. chief justice. >> lesc, look, when somebody from arizona calls, answer their question, and don't even bother to write it down. ok? i stopped somebody else, is he

legal or illegal, let me check --it's -- oh, he's illegal. ok. thanks. good-bye. i mean, why -- it is still your decision. and, if you don't want to know who is in this country illegally, you don't have to. >> that's correct. but the process of -- the process of cooperating to enforce the federal immigration law starts earlier. and it starts with the process of making the decisions about who to --who to stop, who to apprehend, who to check on. and the problem -- the structural problem we have is that those decisions -- in the making of those decisions, arizona officials are not free -- >> under 2(b), the person is already stopped for some other reason. he's stopped for going 60 in a 20. he's stopped for drunk driving. so that decision to stop the individual has nothing to do with immigration law at all. all that has to do with immigration law is the -- whether or not they can ask the federal government to find out if this person is illegal or not and then leave it up to you. it seems to me that the federal

government just doesn't want to know who is here illegally or not. >> no, i -- i don't think that's right. i think we want to be our priorities. and one thing that's instructive in that regard, mr. chief justice, are the declarations put into the record by the police chiefs from phoenix and tucson, both of whom i think explain effectively why sb -- the section 2(b) obligation gets in the way of the mutual effort to -- to focus on the priorities of identifying serious criminals, so that they can be removed from the country. >> 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. >> i think it could, but i think that's quite -- >> 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 because it's prosecuting all>> well, of course, no one would>> now, would anybody listen to>> of course not. >> of course not. >> but this argument is quite different, justice scalia, because here what we are talking about is that federal registration requirement in an area of dominant federal concern --exclusive federal concern, with respect to immigration, who can be in the country, under what circumstances, and what obligations they have -- >> now, are you talking about 3 now or -- >> yes. to 2 as well? >> this is an argument about section 3. >> 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,

you would want to arrest and -- and remove. but how can you determine that without making the -- the inquiry in the first place? >> 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 have committed a serious crime, and they --and they -- the inquiry into whether -- into their status will be for priority -- >> 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 has 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? >> well, i think -- i think it's correct that you can't, but there is a -- there is 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 are in there. that -- that doesn't make it -- >> what if -- what if they just rolled in whiting? >> that's a pretty good one. >> in the federal standards -- that it nobody can restrict the inquiry, and then it says the federal government has an obligation to respond. assuming this that you were limited, so nothing happened to this individual, nothing to the person who was stopped, it would not have happened anyway. the policeman makes a phone call. that is what i am try 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? we have provisions that say any policeman can call. that is what i am trying to push you? >> i think the answer is this. 1373 was enacted in 1996, and 1357 is the provision that sets forth the powers and authorities of federal immigration officials. it contains 1357g, which says the federal government can deputize state officials so long they obtain adequate training and are subject to that attorney general in carrying out functions. the last provision g10, says nothing we have said so far should be read preclude informal

cooperation, communication, or other form of cooperation in the after passage -- apprehension and removal of on lawfully present persons. it is the focus on cooperation. you cannot read into 1373 the conclusion that what congress was intended to do was shipped from the federal government to the states the authority to set enforcement priorities. cooperation is in the service of the federal enforcement. >> can i get to a different question? there were three reasons 2b. putting aside your argument that the systematic operation is wrong, you can see it is 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 is not that it is forcing you to

change your enforcement priorities. you do not have to take the person into custody. what is left? >> let me summarize. with respect to 2, we think the harassment argument, this is a more significant harassment problem. we think there is a structural accountability problem and that they are enforcing federal law cannot but not answerable to officials. we think there are practical impediments that the result of this is to the liberal street -- is to deliver it through the system a bottom, and increase that will not be easy to identify the persons for removal. >> you have been trying to get us to focus on section three. >> i think the key thing about section 3, section 3 is

purporting to enforce a federal registration requirement. that is a relationship between alien and the united states government that is exclusively federal relationship. it is governed by the terms of 1301 to 1306, and the way as to enforce, there is no state police power and that federal registration relationship. i think it is very important -- just as the alito raised the question. it is important clarity on that. if you have come into the country unlawfully, but you have a pending application for asylum, temporary protective status, because you would have to be moved to a country because he cannot be removed because of conditions. if you have a valid claim for relief against the violence

against women act, a victim of human trafficking, because you are the victim of a crime or a witness to a crime, all those persons are in technical violation of 1306a, and it seems to me that they are in violation, my friend mr., it is not correct in saying those are people who are not in violation of 1306a. >> maybe 1306a should be amended than. we have a lot of people in violation of it. >> this is a situation in which no reasonable person would think in that the individual should be prosecuted, and they're often the state are not going to know about asylum status, they cannot know because there are regulations that require that be

kept private. this is a strong illustration of why the enforcement discretion needs to be tested explosively in the federal -- >> do you have any other case in which the basis of pre-emption as you are interfering with the attorney general's enforcement discretion? it is an extraordinary basis for saying the state is pre- empted. >> what is extraordinary is the state's decision to enact a statute as a violation of the federal registration of litigation. that is the problem, and they are doing it -- >> there criminalizing effort during -- is the federal banking example. >> it is quite different. what they are doing here is using 1306a to get at the status of unlawful persons. the only people who can be

prosecuted are those who are unlawfully present. they are using it to get to that category of people, use their state criminal law to perform and immigration function, and the immigration function is to try to prosecute these people and, by the way, if you prosecute somebody, jail for 30 days. the day they get out of jail, they can be arrested again at 8 can happen over and over again. the point of this provision is to drive unlawfully present people out of arizona. >> assuming the two hypothetical. first, the government has said he did not have the money or the resources to enforce the immigration law -- a loss the way we wish. we do not have the resources. hypothetical. also hypothetical, is that the

state of arizona has a massive emergency with social disruption, economic disruption, residents leaving the state. let's assume those things. does that give arizona any powers or a party or legitimate concerns that any other state would not have? >> of course they have legitimate concerns. >> can they go to their legislature and ask the legislature to enact laws to correct this problem? >> this certainly can enact laws of general application. they are already as a result of another law, it is clear there are no obligations to provide state benefits to the population. most importantly -- import elite they can engage in efforts with the federal government --they

can engage in corporate efforts with the federal government, of which there are many going on around the country, in order to address these problems. >> pd say in your brief that the justice department does not get nearly enough money to enforce our immigration laws. >> we have to set priorities. >> exactly, okay, to the state says that may be your priority, but most of these people, if you're not going after them or an inordinate percentage of them are here in our state, not like it. they are causing all sorts of problems. we are going to help you enforce federal law. we're just enforcing federal law. >> what they are on to do in arizona is quite extraordinary that has significant foreign relations defects, and that is the problem, and it is the

reason why this power needs to be tested extensively in the federal government. what they are going to do is engaged in mass incarceration, because the obligation under section 2h is not merely to enforce section 2, but to enforce federal immigration law, which is what they claim they are not doing in section 3 and 5. you are going to have a situation of mass incarceration of people who are unlawfully present. that is going to raise a serious risk of raising significant foreign relations problems, and these problems are real. the problem of reciprocal treatment of -- >> and the government has a legitimate interest in not enforcing this law? >> of course we have an interest, but this court has said over and over again, recognized that the balance of interests that have to be achieved in enforcing the

immigration laws complex and involves consideration of foreign relations and humanitarian concerns and involves public order. >> i know in your brief he said there are some illegal aliens who have a right to remain here. i am just realizing that i do not know what happens when the arizona please call the federal agency. they give the federal agency a name, correct? >> correct. they can come in lots of different ways, but they will get identifying information. >> what does the computer have, what information does your system have? >> the system for incoming inquiries, and then a person at a computer terminal, and that person searches and number of different databases, and that person will check the name

against this one, that one, the other one to see if -- >> how is the database tells you that somebody is illegal as opposed to the citizen? today, if you used the name sonia sotomayor, they would figure out i was a citizen, but let's assume it is john doe who lives in grand rapids. they are legal. is there a citizens database? >> this is a significant problem. >> is not a database? >> if you have a passport, you could be discovered that we, but otherwise there is no way to verify you are a citizen. you have lots of circumstances in which people who are citizens are to come up no match. there's nothing suggested that they have an immigration problem. >> if you run out of your house

without a driver's license or identification and you walk into a park that is closed, and you are arrested, make the call to this agency. you could sit there forever while they figure out -- >> there is a factual point i would like to correct. mr. clement suggests it takes a few minutes to process these calls. that is true, but you are any queue for 60 minutes, so the average time is 17 minutes. >> i was not sure about your answer to justice kennedy. is the reason that the government is not focused on people who are here illegally as opposed to the other categories you were talking about it because of prioritization or because of lack of resources? you suggest if every illegal alien you are a identifying is either removed or prosecuted,

that at a cost tensions with other governments. i do not understand if it is because you do not have enough resources or you do not want to prosecute the people who are simply here illegally as opposed to something else. >> a little more complicated than that. the point is this. with respect to persons who are unlawfully present, there are some who are going to fall into our priority categories. because we have resource constraints and there are only so many beds in detention centers and so many judges, we want to focus on this priority categories, find them, remove them. there is a second category, and that is individuals who were here in violation, technically , of 1306a but to have an asylum application.

with respect to those persons, we think it is harmful to think they ought to be prosecuted, and then there is an additional category who are not in the second category and not priorities in the -- and we think the idea that the individual state will engage in process of mass incarceration of that population, we do think is what section 2h commit errors and a to do under section 3, raises a significant foreign relations problem. >> why is it a problem by simply deporting these people? what is the problem with that? >> a couple of things. first is i do not think it is realistic to assume that the aggressive enforcement the3 and 5 is going to lead to a mass migration back to countries of origin. it seems that it is far more

likely that migration to other states, and that is a problem and part of the reason problem needs to be managed on a national basis. beyond that, it is worth bearing in mind here that the country of mexico has a central role in this attrition. between 60% and some the% we remove weeper move to mexico, and in addition we have to have the corporation of mexicans, and the cooperation of the country to whom -- to which we are removing people who are unlawfully present is vital to be able to make removal work. we have significant issues on the border with mexico, and they are the issues that arizona is complaining about -- >> we have to enforce our laws in a matter that will please mexico? , no, your honor. this points up what the framers

made this power to an exclusive national power. it is because the entire country feels the effects of a decision made by an individual state, and that is what our needs to be exercised at the national level. >> the problems that would are rise in bilateral relations, if you remove all 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 let you know beware and illegal alien as been arrested, and you can decide we're not but to initiate removal proceedings against that individual. it is not are you to remove one more person than you would like to remove under your priorities. , but the problem we are focused on, mr. chief justice, is not our removal decisions, but arizona up's decision to incarcerate. >> and that rises under 3 and 5,

correct? >> 2 identifies the population. i have not said anything about section 5 yet. i did not want to tax the court's patients, but if i could talk about section five. i think the fundamental point about section 5 here is that in 1986 congress changed the landscape. congress made a decision to make the employment of aliens a central concern of national immigration policy, and this court has described the 1986 law as a comprehensive regime. my friend, mr., it says, it may be a comprehensive regime for employers, but it is not for employees, and there ought not be any inference here that the state are precluded from criminalizing efforts to seek or obtain employment in arizona.

i think that is not right. employment is one problem, and congress tackle the problem and made the decision about the sanctions it thought were a corporate the government, and congress did make judgments with respect to the circumstances under which an employee could be held criminally liable as low as circumstances under which employers could be held liable. it is think -- we are making a clear pre- emption argument here, justice scalia, and it is worth examining the judgments congress made in 1986. this is a situation in which the concern is the employer is in a position of being the exploiter and the alien of being be exploited. on the employer side, congress

said states may not impose criminal sanctions, and the federal gornment will not impose criminal sanctions for the hiring of employees unless there is a pattern and practice. the edison congress to think that congress, having made -- it is in congress to think that congress should impose criminal liability on employees for seeking work, for doing what you would expect most other law- abiding people to do. that is a significant problem. in addition, burress made clear in the law that the i9 4 could not be used for other any other purpose other than prosecutions of the federal anti-fraud requirements, and a compass when the to the states free to impose criminal sanctions on employees for seeking work, they would not have done that. there are strong indicators in the text that congress did make a judgment and the judgment was this far and no farther. it is reasonable congress would

have done so poor the same kind of foreign relations concerns that i was discussing with respect to section 3. it would be extraordinary to put someone in jail merely for seeking work, and yet that is what arizona proposes to do under section 5 of this law. there is an express pre-emption provision, but it does not operate to the exclusion of the field or conflict, so we think these principles apply here. we think there's a reason why the pre-emption was limited to the employer side, which is a laugh -- which is after the law was enacted, there is no reason for pre-emergent. >> thank you. >> would like to start with the enforcement issues and that talk about the other provisions. the last thing i will say, since

i think the government's rational -- rather unusual theory becomes preempt it when it is symptomatic, that theory refutes itself. this is echoed there is no interference with enforcement priorities by giving the federal government information on which to bring their enforcement priorities to bear. this is illustrated by the point this court made in its florence decision order this month, which is sometimes you pull something over for the most innocuous infractions and they turn out to be the most serious of offenders. if you preclude officers, as happened in phoenix, from communicating with the federal government, the government will not be able to identify the worst of the worst. but at the declaration of officer -- who pulled somebody over in a routine stop and was shot by the individual. individual it turns out was wanted for attempted murder in el salvador and was guilty of illegal reentry into the united

states. he was stopped on three previous occasions, and his daughters -- his status was not verified. if he had been, he would have been apprehended. if the state can do anything, it can override those kind of local policies and say that is not what we want. community policing is good, but we want to maximize communication with the federal authorities. the enforcement authority argument does not work. as to section 3, i respectfully thingse about various the solicitor general or read off, a situation where somebody registration in violation of 1306a. that provision says a willful failure to register. maybe the prosecutors take that view that there is an infamous and those circumstances, but i

do not think many judges would predict they would say if you have been told by the government you do not need to register, that would be good enough to defeat a finding of willful less. >> you are inviting the very sort of conflict he is talking about, because what will happen now is if there is no statement by the federal agency of legality, the person is arrested, and now we are going to have resources spent on trying to figure out whether they have an asylum application, whether they have this, that, whether they are exempted under this reason, whether the failure to carry as accidental or not -- you are involving the federal government in your prosecution. you may say we are not because all we are on to show is what, that we got a federal call, and answer that the person was not registered?

>> we are going to say we communicated with officious and they said this is somebody who does not have to register. >> no clause problem with that, where the police officer says you are arrested with a charge, not an illegal alien, or is an illegal alien? >> they would use that to not bring the prosecution. the issue would not even arise. >> no, no, no. how about if they get a response, yes, is an illegal alien? where do they get the records that showed that this person is an illegal alien that is not authorized be here? who do they get it from? >> from the federal authorities. it would be admitted. there might be a challenge in that case. this is a facial challenge. i am not want to address that potential sixth amendment issues. if there is sloppiness in the

way the government keeps its records so there are lots of people who should be registered, but are not, i cannot imagine that sloppiness has a pre- emptive effect. the second thing is i think in thinking about section 3, the analogy is not a fraud on the claim, it is the state tort law that says it is a violation of state court what did not even seek the approval as need it and did the fda. states imposed tort law for people who market advice within out getting approval. it serves the federal interest. it does not have a deluge of information. it forces people to get fda approval. this will force people to register. there's no pre-emption there. there is no conflict. i think it is a port to recognize that before 1986, the government was not agnostic about unlawful employment to

aliens. the employees were already covered, subject to deportation. the government said whereby to cover the employers. i cannot imagine why that would have a pre-emptive effect. >> thank you, mr. clement. >> case is submitted. >> the court earlier today handed down its decision. the court struck down three of the four presidents' meeting in place the part of a law requiring police to check the immigration status of someone who they recently -- reasonably suspect is not in denied states legally. online on c-span's facebook page -- also, a slippery slope and way

too much teensy for law enforcement abuse. the court announced other decisions today. one declared it unconstitutional to sentence juvenile to life in prison without parole. another case struck down a montana law limiting corporate campaign spending. the court also announced that its final day of decision will be on thursday. in congress today block grant -- lawmakers have a busy legislative agenda. the house is back in tomorrow. 2013 spending bills for the agriculture, transportation, and housing departments. also a contempt of congress resolution against attorney

general eric holder. in the senate lawmakers doubled in at 2:00 p.m. eastern and will take into consideration flood and fda decisions. watch the house live on c-span and live coverage on the senate on c-span2. coming up next a look at the obama for america campaign and their media strategy. we spoke with that debt -- with , talked about operation boat, a campaign bus effort to target key boaters. we also toward their chicago headquarters. >> in any campaign there are

things you can control, things you cannot control. what worries you the most? >> i have been consistent about this. one is external events, particularly as we are watching europe and the economic impact on us of things that are brought on around the globe. that continues to be a concern of mine. the second is the money being spent we will be the first president, incoming president in modern history to be outspent because of this, the advent of the super pac. we expect a billion dollars to be spent by these groups against democratic candidates. this is a new development. what does not concern me is will we have the best campaign, do we have the best candidate, and do

we have the right message. i feel strongly that we do, and all these people around you give me that confidence. >> what is the message? what is the road map to a second term? >> as the president has said, there is a central issue, not just in this campaign, but how do we rebuild our economy in a way that the middle-class is growing and not shrinking, that people who can work hard and get ahead. that is what this is all about. we have had a longstanding problem before the economy collapsed in 2008, declining wages, more and more pressure on the middle-class, more and more difficulty for people who want to work their way into the middle class, and this is central to who we are as a country, and central to the strength of our economy.

which candidate has a vision that has at its core the revitalization of the american middle class? barack obama does. this is what his whole life has been about. when you think about their plans for the future to the extent you can discern about what governor romney's plan is, what is toward building that economy, and his looks backward to the policies we experienced in the last decade which crossed the middle class. >> you know you are not there yet. a focus group said the president is in trouble. how do you get there? >> i have high regard for pete. i think he is one of the very best in our business. i would be reluctant to state and analysis on one focus group. as you can imagine, we are talking to voters all the time, so i am listening all the time, and i am not hauling and-about this election.

i have said it is going to be close. by definition it has to be a close election. last time we won by 53% of the vote. this is going to be a much closer election than that. what i hear is the voters understand that obama's commitment is with the middle- class, that his vision is about building an economy in which they can move ahead. there are questions about governor romney because of his background and because of what he is proposing now. i think he has a long way to go to build any kind of trust with the american people on these issues. >> is this a choice election? >> i think it betrays a lack of confidence in their candidate see -- candidacy that they did

not want to talk about mitt romney or his plan. he spent some time with you, some time with bob schieffer last weekend, and what was remarkable was how he was willing to say when pressed all for specifics on his program, when he was pressed on specifics on what he would do, in each and every its stance he would not answer the question. he is the artful larger. i cannot think the american people are going to let the artful dodger as the president. >> is this going to be a negative campaign? >> all i can tell you is we began our media campaign in the battleground states in may, and we spent $25 million on positive ads talking about the president, where we have been as a country

and where we are going, and we will continue to make that case. are we going to draw distinctions with the governor? yes. are we got to fill in gaps that he will not? yes, because it is important there be a level playing field. ultimately this is an election about the future and what kind of future we want for our country, for our children. are we going to have a country in which children have expectation that if they work hard they get ahead and people will be boarded and they can realize their full attention? where can be a stronger country if that is the future we pursue. if we go to the theory that is we can cut our way to prosperity, cut taxes for the wealthy, cut regulations, cut polluters, and simply withdraw and hope for the best, i think we will get the same result we got in 2008 and in the last

decade. that theory has been tested and it has failed. >> you are a veteran of the news business in chicago. when did you move into politics? when did you meet barack obama? how is this campaign different from four years ago? >> i spent eight years at the "other tribune,"and a half day -- -- "chicago tribune." i learned so much about life on that become and i covered politics. i was ultimately a political columnist, covering a couple of national campaigns. paul simon was running for the u.s. and in 1984 and he asked me to work with him, and i thought he was an exemplary guy. i was concerned about what i thought were the trends of the news business, the corporate as

asian of the news business, the breakdown of the business from the news and business sides. i went to work for paul and i have been involved in politics ever since. i open up a consulting firm after that and did strategy for campaigns. 1992, a friend of mine called me and said, i just met the most remarkable young man, and i think you ought to meet him. his name is barack obama, and i said, interesting name. why do you want me to meet him? she said, you know, i have this odd feeling -- he had just come back from harvard lost, organizing registration, and i think this guy could be president some day. now when i go to the track i always take betty lou with me because she knows how to spot winners. >> do you note that in 1992? >> i knew he was a bright guy.

that struck me right away. i did not sit there and say this man could be president, and just the idea of an african-american man named barack obama being elected in 1992 seemed a remote prospect . over time i watched him in the state legislature forge coalitions around difficult issues, that penalty reform, welfare reform, racial profiling, and a whole series of health care issues. and it was clear that he had something special. in 2002 he called me and said he was thinking about running for the senate, and there were candidates who were asking for my help, but i felt if i could help barack get elected, that would be something i would be proud of for the rest of my life. even then it was not with a mind

that somebody -- some day he would be president. we had this phenomenal campaign for the senate. he started off behind, closed very fast. we were trying to get 37% of the vote. he ended up getting 50% of the vote, winning in places you would never imagine. it was an inspiring race. from that point on, the great convention speech, it has been an extraordinary journey. >> how is this different from four years ago? >> it is different because no one could have anticipated in even at this time in 2008 exactly what he and more importantly the country would face in the coming months. no one could have anticipated that lehman brothers which collapsed, that wall street would collapse, that the economy cook would collapse, and

the date we bought in the door we would be losing 800,000 jobs a month. we knew there were two wars he would have to happen. nobody anticipated that. we as a country had been through a difficult period, and that colors this election. the other thing we could not anticipate was that the night of the inauguration that republican leaders would be beating to talk about how they could thwart the presidency. we had this idea that in the midst of a national emergency we could forge a bipartisan effort to deal with the nation's problems, and they have other ideas, and senator mcconnell have spoken to it, that they would not give him support on any issue because that would certify that he was a unita and they did not want to do that. -- uniters.

they said their big mission was to defeat the president, and that has colored the last three 3 1/2 years. has made for a much more difficult environment. i must say in retrospect it looks a lot smoother sailing that it would have. there have been times when that same pundits who are writing about our campaign in less unflattering terms have written us out of that race as well, so we have experience with this. there is no doubt that that was a once-in-a-lifetime kind of journey. this is a harder to scrap. in certain ways it is more important because we're at such a critical juncture as a country that now is not the time to go back to doing what we were doing that got us into this jam in the first place. now is the time to push forward

and build an economy in which the middle class has a shot, and we are only going to do that not just by reducing our deficits, although that has to be a key element of it, but by investing in education and research and develop, innovation, energy, clean energy technologies, futures will create jobs and create a reprieve from the grip of foreign oil. are so many things that we need to do to move this economy for. we cannot be pass it. i feel a sense of urgency about this election, as much as we did before the last. >> you have been inside a glass house, if the president is reelected, -- you have been inside the white house, where the political and permit be ?ifferent if he is reelected >> i believe there are republicans of good will in washington who would like to

work with us, and they have indicated. i was there for two years. i know several people there who would like to work with the president to solve problems. the strategy of the republican party does not permit it. there has been this reign of terror. any effort at cooperation is considered the trail on the part of some and the republican party. people have been throttled in their desires to try to work together. my belief is when the president wins in november we will liberate these republicans of good will that they will blink in the light of a new day and will turn to the river norquist -- that grover norquists of the world and saying we did it your way, and that was a failure. now there are issues that we will fight and disagree with, but where we can agree we will find that common ground. that is the message that his

reelection will said. >> the media, because you look at the media from a different vantage point. how would you size up the estate of media today? >> there is an element of freneticism day. the instantaneous nature of communications makes it difficult to filter, but it has been the case that these things run in at the senate. i could happen told you at the beginning of this year that this is how the primary would be run, and republicans would look enfeebled, that there would be a nominee and republicans would rally around that nominee and the true nature of the race would reveal itself, which is that it would be close. the media would eat that up and say romney is surging,