action from arizona gov. jan brewer and harry reid. we will also show you the oral arguments. . .

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>> members of congress have reacted throughout the day to the supreme court court ruling on the immigration. stny hower -- >> more of our supreme court coverage with opponents of arizona's immigration law, saying that they'll continue to challenge the provision upheld by the supreme court. the part they call, "show me your papers. ".

>> good morning. this is a dark day for civil rights in america. the supreme court today upheld racial profiling by states and will have the impact of u.s. citizens, american citizens being proceed filed and persecuted for no reason other than the race of -- other than their race or the color of their skin. this is a disastrous decision for civil liberties and civil rights in america. we are pleased this court did overturn several other reprehensible provisions of the arizona law. however, the worst provision, the so-called "show me your papers, please" provision, that allows law enforcement to profile people on the basis of their accent, on the basis of the color of

their skin or their perceived ethnicity, this disastrous provision, the court upheld. we will continue to fight this provision in courts around the country, and it is absolutely essential that this november latino and asian-americans and immigrants all over this country turn out in record numbers to elect representatives who will push for immigration reform and insure that we have justices who you hold this country's great traditions of equality and liberty for everybody. this decision is a step back for civil rights in the united states of america, and we will fight it. thank you very much. >> today with the decision that the supreme court just issued, it's sent a message to states like arizona. three out of four provisions were struck down, and we are very glad to hear that however, section 2 b which has been upheld is the provision that has had the most direct impact on our

communities so far. it basically is allowing law enforcement to go forward and racially profile poor people and people of color. we believe that this is a decision that does set back civil rights. we vow to continue fighting sb 100, particularly the racial profiling provision until it's struck down. our civil rights lawsuit has other civil rights constitutional charges including the fourth fifth and 14 amendment. we believe this is a violation of the equal protection clause and will be struck down. we night need the community to organize to advocate and join us in our litigation. finally any state that is considering following arizona with respect to this racial profiling provision should take heed, because we will be challenging those actions in court. an finally, other states know that this is not the way to treat immigrants with

our diverse community and the way demographics are shifting in this country, we must change the path. we have to stop following arizona's footsteps of pursuing policies based on hatred and fear, an instead trying to you about inclusive an integrating immigrants in our community and respecting all our constitutional rights. gracias. >> as you know, sciu is the largest union of immigrant workers in this country. we have been following senate bill 1070 and also advocating for immigration reform, because we know that is the only way that we are going to create a system in this country that will benefit all workers, whether they be immigrant workers or they be native-born workers. as far as today's decision, let me just that and echo, we are very please thaed the supreme court appears to say that that this is a federal

matter, that in order to fix this broken immigration system that, we need a federal solution and not a state by state patchwork of laws that make things worse rather than better. however, we are extremely disappointed that they upheld the "show me your papers" provision. we think that that is clearly a violation of human and civil rights, that it will in fact lead to racial profiling. when we look at the way that sheriff joe arpaio in phoenix, arizona has been implementing the law, i think that is going to believe that he now has a green light to continue that kind of activity. well, we have news for sheriff arpaio: this law will not stand. we will join with any organization of this country to continue to challenge and

show why racial profiling is an integral part of senate bill 1070 and will be extremely harmful to the civil rights of workers and civil rights of people in this country. we will also join with center for community change and hundreds of other organizations throughout this country, to make sure that no more states and no more politicians are elected who will implement or vote for laws of this kind. the latino community has been watching this decision very closely. we will in fact turn out on november the 6th. we expect that there will be in excess of 12 million latinos that will turn out to vote. the supreme court had their say today on the "show me your papers" provision. on november the 6th, latinos

will have the final word. [applause] >> we will in fact say this law is wrong. it will be overturned by the power of our votes, and we will make sure that we have an immigrant system that will do justice to a country of immigrants. thank you. >> we've been helping the organizations in phoenix do what they can to fight the terrible, brutal, unethical treatment of our immigrant people and even citizens who happen to look like a mexican or a person from another country. my parents were immigrants from europe. i don't get stopped in any kind of a traffic stop just because i look like an immigrant, and we are very pleased that some of the 1070 law has been struck down. the governor, our sheriff,

our infamous sheriff with his terrible tent city prisons have been trumpeting how they will win, and they have -- we have done things like recall the president of our senate because of sponsoring this bill, and however, the american legislative exchange council has put this bill out all over the country and other states like alabama and so forth are putting this bill into law, and so we need comprehensive immigration reform. we need the administration, politicians of all kinds to come out strong for immigration reform, not just partial measures. the dream act is a very small thing. it could have been done several years ago. millions of families have been broken in phoenix and elsewhere all over the united states, and

brutalized by children separated from their parents, put in jail, and we are very happy to see some progress here by the court in striking down some of the provisions of 1070. >>. >> george pouk. i work with organizations, unitarin universealists who are now demonstrating in phoenix. >> president obama said, i remain concerned about the practical impact of the remaining provision of the arizona law that requires local law enforcement officials --

>> congressional reaction include comments from senate majority leader, harry reid. >> mr. president, today the supreme court struck down the spirit of the arizona law. that's of course the immigration law. while i agree with the court's decision to invalidate three troubling provisions of arizona's flawed law, there are actually four provisions

declared unconstitutional. one was upheld. i really am concerned about the section they upheld and i'm surprised they did, but they did. they just upheld a mesh that you are allows police to conduct immigration checks on anyone they suspect of being in the country illegally, even if the evidence is only an accent or the color of their skin. it gives arizona officials pre-reign to detain anyone they suspect of being in arizona without documentation. as long as this provision remains, innocent american citizens are in danger of being detained by police, unless they carry immigration papers with them at all times will it's reassuring the court left the door open to court charges on its unsound decision. i just say to you, mr. president, and anyone within the sound of my voice, someone with my skin color

or yours, i don't think you're going to be carrying your immigration papers with you every place you go, but if you're in arizona, and you speak with a little bit of an accent or your skin color is brown, you better have your papers with you. that's unfortunate. it's reassuring that the court, though, left the door open to further court challenges of this very unsound provision. i'm optimistic that once that portion of the law is implemented, it will be discarded. laws that legalize discrimination are not compatible with laws and traditions of equal rights. so, it's disturbing, mr. president, that mitt romney has called the constitution -- sorry mr. president. it's mr. called arizona ezz law a model for immigration

law. the anyone who thinks such a law should serve as a model is outside the mainstream, and the united states supreme court agreed with that today will today's partial after firms the obama administration was right to challenge this awful law, and it's a reminder that the ultimate responsibility for fixing our nation's broken immigration system rests with congress. instead of allowing 50 states to have 50 different enforcement mechanisms, we need a national solutions that continues to enforce the border pun issues employers that exploit immigrants and undercut american wages, improves our immigration system and requires 1 million people who were undocumented, register with the government, pay fines and taxes, learn english, work, pay taxes, stay out of trouble and go to the end of the line to legalize their status. democrats are ready for this challenge, and we have been willing to craft a common

sequence legal solution to this for a long time, one that's fair, touch and practical. if anything, mr. president, we've been ready to do this for years. we have tried on a few occasion, the problem now and has been republicans won't vote for immigration reform. simple as that. we've tried. the first step would be to pass the dream act, which would create a pathway to citizenship in the country through no fault of their own. if you standing people stay out of trouble and work hard in high school, they should have the chance to serve their country in the military, go to college, and work towards citizenship. unfortunately mitt romney said he would veto that, the dream act. president obama on the other hand took decisive action in halting deportation of dreamers. his drif dave veres will protect 800,000 people and focus law enforcement where it belongs, on deporting criminals. as we all know, though it's

not a permanent solution, but president obama's decision to defer these deportations was necessary congress, must consider a long-term resolution to protect the dreamers and talking comprehensive immigration reform that addresses all 11 million undocumented people living in this country, but that will take cooperation from our republican colleagues, and that hasn't been forthcoming. >> justice anthony kennedy wrote the opinion for the supreme court in its 5-3 decision, striking down most of the arizona immigration law. he was joined by chief justice roberts and justices ginsberg. just kagan did not participate in the case, the court upheld the provision that requires police officers to review a person's immigration status

if they suspect a person is in the country illegally. up next, the oral arguments in this case this past april. it's 1:20. -- an hour and 20 minutes. >> we will hear argument in the case of arizona vs. the united states. mr. clement. >> the state of arizona bears a disproportion at share of the cost 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 political injunction to enjoin the statute as preempted on its face before it took effect. the ninth circuit agreed

with respect to four provisions, but only by implementing federalization and point to authorization in federal statute for its approach. that gets matters backwards. a state does not need to point to federal authorization for enforcement efforts. rather, the burden is on the body seen to go preempt a duly enacted state law to point to some provision in statutory law that does the preempting. the united states can't do that here and the reasons are obvious. there are multiple provisions of the federal immigration law that go out of their way to try to facilitate state an local efforts to communicate with 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 state an 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 some's immigration status. indeed if the dhs -- >> 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. this only operates when somebody has been essentially stopped for some other infraction, and that at that point, if there's

reasonable suspicion to try to identify immigration status, then that can happen. of course one of the things -- >> can i just stop you there just one moment? that's what i thought. so, presumably i think your argument is that under any circumstance, a police officer would have the discretion to make that call. seems to me that the issue is not about whether you make the call or not, although the government is arguing that it might be, but on how long you detain the individual. meaning, if 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 the issue that devids the parties is only the issue how long can you detain somebody, because i think the federal government takes a rather unusual position, that even though these stops an these inquiries if don an an ad hoc basis become preempted if they're done on a systematic base snis i understand that's their argument. i want to get to how assuming your position, that 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 how long and when is the officer going to exercise discretion to release the person. >> i don't think section 2 (b) speaks to that. i don't think it says that the systematic inquiries

have to take longer than the ad hoc inquiry. indeed, section 2 in one of its provisions specifically says it has to be implemented in a way that's consistent with federal both immigration law and civil rights law. >> what happens if this is the following call, the call to the federal government? yes, he's an illegal alien. no, we don't want to detain him. what does the arizona law say with respect to releasing that individual? >> well, 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 for needs to be dealt with. but if what we are 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 could be very well elevated by section 6. i don't want to change the subject unnecessaryly, but there's an arrest authority for somebody who has committed a public offense, which means it's a crime in another state and arizona, but the person can't be arrested for that offense, presumably because they've already served their sentence for that offense. 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 clear what would happen is an inquiry would be made to 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, that's the end of it. that individual is released because there's no independent baseness that situation for the state officer to continue to detain the individual at all. >> how would the state officer know if the person is removeable? that's sometimes a complex

injury. >> justice sometimes it's a complex injure. gary: sometimes it's straightforward, but it think the practical answer to the question is, by high 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 part of that inquiry they can figure out whether this is a removeable offense or at least substantially likely removeable offense. >> it takes two weeks to make that determination, could the alien be held by the state for that whole period of time under section 6? >> i don't think so, your honor. in all these provisions, you have the fourth amendment backing up the limits. >> what would be the standard? you're the attorney for the alien. they're going to hold him for two weeks until they figure out whether this is a removeable offense, and you say, under the fourth amendment you cannot hold him more than a reasonable

time. >> yes, ultimately it's reasonable, and from these circumstances what we know from the record here is generally the immigration status inquire si something that takes 10 or 11 minutes, or no more than 10 if it's a 28 g officer. >> the same question, but i'm trying to think of examples. example 1 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 pedia light. it happens he's a citizen of new mexico an his driver's license doesn't work. now they put him in jail, and you can represent to us -- i don't know if you can or not -- can you represent

to us he will not stay in detention for a significantly longer period of time than he would have stayed in the absence of section 2 (b)? you want to represent that or not? >> i don't want to represent that. >> if you cannot represent that -- and i'm not surprised you don't want to. don't know. >> sure. what i can represent is he's not going to be detained any longer than the fourmt amendment allows. >> that's another question. 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. or the fourth measurment would have allowed more. so now 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 won't be resd. for some it might take two hours. for some it might take two days. there will 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), that a fair conclusion no. >> i don't think it is justice briar, and here's why it's not. even though there are situations where a state authority will arrest somebody an release somebody relatively rapidly, they generally don't release somebody until they nail down their identity and whether or not they're likely to come to a court hearing. >> is this an immigration law problem, or is it a fourth amendment problem? does it violate the fourth amendment? >> no, of course the federal government has a lot of immigration arrests that are subject fourth amendment are not making a fourth amendment claim here, and it's my i they are an

immigration law or something that should be the basis for striking down the statute on its face. i think i want to make the point that the actual premise 2 (b) is going to lead to the elongation of arrests is not true. >> can i make the following statement in the opinion and you will say that's okay. imagine it's imaginary. we interpret, or 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 right? >> i think what you could say --. >> can i say that. >>. >> i don't think can you say that. i think you probably could say look, this is a facial challenge. the statute has 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 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. already in a significant number of booking facilities in arizona, you already have the process that people are systematicly run through immigration checks when their booked as part of the booking process. that's reflected in the maricopa county system and done as a 287 g after

certificate as routine. the federal government doesn't like this statute but they're proud of their occurred communities program, and that makes clear that everybody that's booked at participating facilities eventually has their immigration status checked. so i don't think that this immigration status check is likely to lead to a substantial elongation of the stops or detention. >> i want to make sure that i have 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 unless it's under 6 is what you're telling me? under 6, 3 or one other of arizona's immigration crimes. >> obviously if there was somebody going 60 miles an hour in a 20 miles an hour school zone, they may decide

it apart from the immigration issue this is somebody they want to bring to the station, but once they make contact with federal immigration officials, if federal immigration officials say we have no interest in removing this person or prosecuting this person under the federal criminal provisions, then that's the end of the federal piece of the inquiry. >> who could say 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. >> you call up the federal government, the federal government is yeah, he's an illegal immigrant, but that's okay with us, and the state has no power to close its borders to people who have no right to be there? >> well, justice here is my response. all this discussion as i've understood it has been about 2 (b) and to a less extent 6. 6 and 3 of the statues does provide authority under

state law to peoplize dora pen ice somebody, so there would be a state authority under these hypotheticals to take action, but not with respect. >> i think justice scalia's theory was a 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, i think --. >> that is reason by he's an alien. >> i think the answer to that is no. i think the reason it's no has more to do with our defense of section 3 and other provisions than it does to do with the inquiry and arrest provisions to be fix snead before you move on to the registration requirement, could i take you back to an example that is similar to the one that justice briar -- breyer was

referring to? let's refer to someone who is a citizen of new mexico, has a new mexico driver's license, drivers across the border is stopped for speeding 10 miles over the speed limit on an interstate. and the officer for some reason thinks 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, because the person is a citizen. so where would the officer take it from there? >> well, if i could just kind of work back for a second, 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. >> why would it dispel reasonable suspicion if the officer knows it's a state that issues drivers licenses to aliens who are not lawfully in the united states? >> that might be a situation they are that's the case, and then it wouldn't dispel the reasonable suspicion. in the average case i think it wochlt they would then go

further and make the inquiry to the federal officials, and then because of the fact the individual actual si a citizen or something like that, then what would happen you get to a permissible stop and the officer would release the individual. it might not be the end of the matter because 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 then to detain the individual, certainly beyond 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. >> that may be the case, but under the fourth amendment, presumably, if the officer can arrest, the state officer can arrest a person simply on the ground the person is removeable, which

is what the office of legal council oh pined several years ago, presumably the officer could continue to detain that individual that i mentioned until they reach a point where a 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 removeable, they could hold the person presumably until 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 preexisting definition of you public offense in arizona law, we don't think this is the full office of legal council situation where you have broad arrest authority for removeable 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

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 forbade some officers from making those communications, because that's one of the primary effects of 2 (b). it shows how difficult the government's premgs -- preempt status is. so, what 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. yourr -- you must have those inquiries. >> council, does section 6 permit an officer to arrest an individual who has overstayed a visitor's visa

by a day? they're removeable, correct? >> they are removeable. don't think they would have committed a public offense. that's an unusual situation. i don't think they would have committed an offense under arizona law, so i don't think there would be arrest authority in that circumstance. >> what is the the definition of public offense? >> a public offense definition is actually a petition of -- 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 an anomoly is normally if something is a crime in arizona there's arrest authority for that directly, so what this captures is people who have committed a crime are no longer arrestable for the crime, but their removing because of the crime. >> counsel, maybe it's a good time to talk about some of the other sections, in particular section 5 [c].

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 prohibits sanctions with respect to application for work and arizona in this case is imposing some significant sanctions. >> it's certainly imposing different sanctions. it's hard to weigh the difference between remove built, which is obviously a significant sanction for an alien an the relatively modest penalties of 5 c. but i take the premise that 5 c does something that there's no direct analog in federal law. but that's not enough to get you to preemption, and it only targets employment that is expressly forbidden by federal law. so then we look at essentially the government is reduced to arguing that

because in 1986, when congress passed irca, it only focused on the employer 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. >> would you agree, would you accept as a working high hypothesis that we can begin with the general principle that the hines vz davidowitz language controls here and our primary function is to determine whether in the circumstance of this case, arizona law stands as an obstacle to the accomplishment and execution of the full purposes an objectives of congress? is that an acceptable test from your standpoint? >> think it's an acceptable test. justice kennedy, there obviously have been subsequent cases that give additional shape and color to that test, but 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 may be -- this must be, the enforcement of this statute as arizona describes it will be in considerable tension 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, but i don't think you take the federal government for its word. in daconis the sg said that california statute was preempted. and we had the sg telling us preempted that's god enough for us. they went beyond that and they looked hard, and what they did was establish this is an area where the presumption of premgs -- applies. it only addresses the employer side of the ledger. >> for those of us in whom

legislative history has some importance, there seems to be quite a bit of legislative history that the idea of punishing employees was raised that was specifically rejected. so 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 decided not to punish employers. >> there's a difference between congress not deciding is to address employees with edition natural prohibition and say that decision has preemptive effect. that's a remarkable additional step. here's why if you consider the legislative history it supports this, because here's what congress confronted. they started thinking about this problem in 1971. they passed irca in 1976.

here's the state of the world. it's already unlawful under federal law for the employee 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've illegally entered, so they're already subject to an independent criminal offense. so at that point, congress is facing a world where the employees is already subject to multiple prohibitions. the employer is completely scot-free under federal law, so in 1976 they addressed the employer, they have an express preemption that says nothing about the indent --. >> it did provide. your position was it leaves the demand side open, but there is regulation, and a question is whether anything

beyond that is inconsistent with the federal -- it's not just that the person is removeable, but if they use both documents in -- false documents in seeking work, that's a federal crime. the supply side is regulated but you want to regulate it more. >> two responses, if you look at what they regulate on the employee's side it's really things that assist in regulating the employer side because what they're worried about is a fraudulent document that then is used to essentially trick the employer to employ somebody to shouldn't be employed. the second thing is the more that you view it as regulating part of the employee side, i think the more per swaif it is that

the express preemption decision doesn't reach the employer side of the equation. >> there will be rebuttal time, but i would like to hear what you say about section 3 before you sit down. >> thank you mr. chief justice. i think the question as to section 3, it's a provision that is parallel to the federal requirements an imposes the same punishments as the federal requirements, so it's generally not a fertile ground for preemption, but of course there are cases that find preemption even in those circumstances. they're the cases that the government is fwoersed to rely on, cases like buck man. >> would double prosecutions -- suppose they were prosecuted under federal law for violating base catholic terms of 3. could the states, then prosecute them as well? >> i think they could under general double jeopardy principals and the dual sovereignty doctrine. if that were a basis that

might be the basis for a challenge if somebody was already prosecuted under federal law, but of course this court has confronted that argument in california where you had the statute of california that prohibited somebody operating as an interstate carrier without the icc license. it was raised. you have to let the feds enforce that law, otherwise there's the possibility of dual punishment and this court rejected that argument there. >> i think an obvious hurdle for you is what hines said. the registration scheme, congress enacted a complete registration scheme, which the states cannot complement or impose even auxilliary regulations. so i don't see the alien registration as a question of obstacle preemption but

as with an alien that we don't want competing registration scheme. we want the scheme to be wholly federal. >> i think that's part of the reason why i accepted justice kennedy's characterization in hines because although there's discussion of field preemption, the court states it's in terms of obstacle preemption and here's where i think is the critical difference what the court had before it in hines and what you have here. in hines, pennsylvania passed its statute before congress passed the alien registration statute, so they weren't profits in pennsylvania an couldn't predict the future so there was a conflict between the pennsylvania registration law and the federal registration law and the court struck it down on that basis. here arizona had before it the federal statute. it looked at the precise present visions in the federal statute. it adopted those standards

as its own, and i am -- imposed parallel penalties for violation of the state equivalent so the analysis is what this court laid out in whiting which says in these kinds of cases what you look for is whether or not the state scheme directly interferes with the o'open -- operation of the federal. >> 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 there are people that nobody would think should be removed, i think somebody penneding with asylum application would fall in that category. how would section 3 apply there? >> think it probably wouldn't apply. there are two provisions that might make it inapplicable. if i understand you know the government's position, there are certain people where

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 doesn't one foul of 1306. >> if you're in the country illegally, you can't get a registration. >> well, sure, but that's not the narrow class. >> i understand, but i don't understand the distinction we are drawing that, you can't be prosecuted for lack of registration if you couldn't have gotten a registration. >> well, if you're in the country lawfully, you can try to register, and so somebody who enters illegally, mine they're already guilty of one federal misdemeanor by the illegal entry. >> right. >> but the point is if 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 is not subject to prosecution under the federal statute. therefore wouldn't bed subject to prosecution under the state statute. >> thank you mr. clement. >> mr. chief justice, may it please the court. with. >> before you get into what the case is brx 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. >> so this is not case about ethnic profiling. >> we are not making any allegation about racial or ethnic profiling in the case. mr. clement is working hard to portray sb 1070 as an aid to federal enforcement, but the 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 adventure czar any 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 is here illegally. >> that is our position, your honor. it is our position because the constitution vests exclusive authority over immigration mat weathers the national government. >> well, all that means, it goifs authority over naturalization, which we've expanded to immigration. all that means is if government sets 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 no power? 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 individual states -- >> it's still up to the national government. arizona is not trying to kick out anybody that the federal government has already said do not belong here. no state shall without the consent of congress lay impost or duties on imports and 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 detained. >> that's a question of enforcement priorities. let's say that the government had a different set of enforcement priorities. and their objective was to protect to the maximum extent possible the borders, and so anyone who is here illegally, they want to know about and they want to do

something about, in other words different from the current policy. does that mean in that situation the arizona law would not be preempted? >> i think the mandatory character of the arizona law and the mandatory obligations it imposess especially backed by 2 h, which imposes civil penalties of $5,000 a day on any official in arizona who is not following the rest of 1070 to the maximum extent possible does create a conflict, but i think the most fundamental point about section 2 is to understand its relationship to tore provisions in the stat out. section 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. >> i have the same question as the chief justice. suppose that the federal government changed its priorities tomorrow and instead threw out the ones

they have now and said the new policy is maximum foerlt. we want to know about every person who is stopped or arrested. we want their immigration status verified. would the arizona law then be unpreempted? >> no, i think it's still a problem, issues. these decisions have to made at the national level, because it's the national government and not -- it's the whole country and not individual states. >> do you have an skwam where foerlt discretion -- enforcement discretion that is the act of prelting? where we have said that essentially the priest of state law can occur not by virtue of the congress's prelting, but because the executive doesn't want this law enforced so rigorously, and that prelts the state from enforcing it rigorously. >> i think the preemption

here flows from judge wills of congress, from the registration systems that congress set up from the decision of congress in section 1103 in the law to vest the hs and the attorney general with the authority to make the judgements. >> well, they do that with all federal criminal statutes, and you acknowledge as a general matter states can enforce federal criminal law, which is always entrusted to the attorney general. >> they can make. they can engage in detention in support of the federal law. that's what the opinion from 2002 says. does not say they can prosecute under federal law. that's a far different matter and really goes the heart of what's wrong with section 3 of this act. >> but you say that the federal government has to have control over who to

prosecute but i don't see that section 2 (b) says that at all. all it does is notify the federal government, here is somebody who is here illegally. the decision to prosecute for federal immigration offense's rests entirely with the attorney general. >> that's correct, and with respect -- let me address something fundamental about section 2. that is true, but i think it doesn't get at the heart of the problem here. section 1 of the statute says that sections 2 and 3 and 5 are supposed to work together to achieve this policy of attrition through enforcement, so what section 2 does is identify a population that the state of arizona is going to prosecute under section 3 and section 5. >> so apart from section 3 and section 5, 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. i think it's important to understand the dilemma this puts the federal government in. arizona has got this population, and they're by law committed to maximum enforcement, so the federal government has got to decide, are we going to talk our resources and use them to deal with this population, even if it is to the detriment -- >> 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 of the equation, mr. chief justice. they say if you're not going to remove them, we are going to prosecute them. i think this gets at the heart of why this needs to

be an exclusive national power. >> under section 3 and 5. >> yes, but what you're talking about is taking somebody whose object offense is being unlawfully in theountry and putting them in jail. >> 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. 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. >> we will, we are not saying the state can't ask it in any individual case. >> 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 doesn't that defeat the facial challenge to the act? >> i don't think so, mr. chief justice, because i think the problem here is in this, in every circumstance as recall of section 2 (b) of the law, backed by the penalties of section 2 [h] the state official must pursue the priorities the state has set even if they're in conflict with the federal priority. >> if every law enforcement officer in arizona saw everything exactly like the legislature, so without the direction of the legislature they took it upon themselves to make these inquiries every time they stopped or arrested somebody, would that be a violation of federal law. >> no b, your honor because they would be free to be responsive to federal priorities if the federal officials came back and said look, we need to focus on gangs. we need to focus on the drug

problem at the board severe what if they said we don't care what your priorities are, we have our priorities, and our priority is maximum enforcement, and we are going to call you in every case? and it was all done on an individual basis will all the officers were individually doing it. that would be okay? >> well, if there's a state policy locked into law by statute, locked into law by regulation, then we have a problem. >> general --. >> that's what i can't understand because you seem to be saying that's 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 with respect to immigration enforcement 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.

>> the hypothetical is that's all the legislature is doing. >> except i think justice ken can i, the problem is it's not cooperation if in every instance the officers in the state must respond to the priorities set by the state government and are not free to respond to the priorities of the federal officials. >> i'm sorry. i'm a little confused. general, i'm terribly confused by your answer. okay? and i don't know that you're focusing in on what i believe my colleagues is trying to get to. 2 (b) has two components as i see it. every person that's suspected of being an alien who is arrested for another crime, that's what mr. clement says the statute means, the officer has to pick up the phone 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 are going state 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, taking out the other provisions? taking out any independent state-created basis of liability for being an illegal alien. >> i think there are three. the first is the hines problem of harassment. we are not making an allegation of racial profiling. nevertheless, there are already tens of thousands of stops that result inquireis in arizona, even in the absence of sb 1070. it stands to reason that the legislature thought that that wasn't sufficient and there need to be more and given that you have a population in arizona of 2

million latinos, of whom only 400,000 at most are there unlawfully. >> sounds like racial profile to go me. >> and given what we are talking about is given the status of being unlawfully present -- >> do you have the statistics of how many arrests there are and what the percentage of calls before? >> there's some evidence in the record. it's the declaration in the joint appendix. he used to run the law enforcement support center which answers the inquiries. that declaration indicates in fiscal 2009 there were 80,000. >> what does this have to do with federal immigration law? it mean, it may have to do with racial harassment, but i thought you weren't relying on that. are you objecting to harassing the people who have no business being here?

they've been stopped anyway, and all you're doing is calling to see if they're illegal immigrants or not. so you must be talking about other people who have nothing to do with our immigration laws, citizens and other people, right? >> and other people lawfully present in the country certainly. >> this has nothing to do with the immigration law. >> hines has identified this problem as a last. as a central feature of preemption under immigration laws because of the concern the way this nation treats citizens of other countries is fundamental to our foreign relations. >> let's go back, because i'm trying to get focused. i think the question i think others are asking and one way to focus is the same way i asked mr. clement. think of 2 (b) the first sentence. now, i can think, i'm not saying they're 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 is preemptive and some police. so keep that out of it. suppose 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 i.c.e., 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, any preemption argument against that sentence as i have just interpreted it? i don't know what your answer is. that's why i'm asking. >> we think it would ameliorate the practical problem, but there's still a structural problem in that this is an effort to enforce federal law, and under the

constitution it's the president and the executive branch that are responsible for the enforcement of federal law. >> 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 acronym? >> yes. >> when somebody from arizona calls to answer their question, and don't even both tore write it down. okay. i stopped somebody else. is he legal, illegal? oh, he's illegal. okay, thanks. good-bye. 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 cooperating to enforce the federal immigration law starts earlier, and it starts with the process of making the decisions about who to stop, who to apprehend, who to check on, and 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 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, don't think that's right. i think we want to be able to cooperate and focus on our priorities, and one thing that's instructive in that regard mr. chief justice are the deck largsz put into the record by the police chiefs from phoenix and tucson, both of whom i think explain effectively why section 2 (b) obligation quest -- gets in the way of a mutual effort to focus on the priorities of identifying serious krils, so that they can be removed

from the country. >> anyway, what's wrong about the states enforcing federal law? there's a federal law against robbing federal backs. can it be made a state crime to rob those banks? i think it is. >> i think it could. >> does the attorney general come in and say, you know, we may really only want to go off the professional bank robbers. if it's just an amateur back robber, we are going to let hill go, and the state is interfering with our whole squeal here, because it's prosecuting all these back robbers. now, would anybody listen to that argument? >> of course not. this argument is quite different, justice scalia, because here what we are talking about is the federal registration rirlt in an area of dominant federal concern who can be in the country under what circumstances. >> this isn't an argument about section 3.

>> can i ask you this about 2 before you move on. just as a matter of information, how can a state officer who stops somebody or who arrest's somebody for a non-immigration 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. and that might be somebody who you would want to arrest and remove. but how can you determine that without making the inquiry in the first place? >> well, in any individual case that's correct. it won't always be correct if you're arresting based on probable cause that they've committed a serious crime and the inquiry into their status will be enough. >> what if they just, say, stop somebody for a traffic violation. but they want to know

whether this was a person who was previously removed and has come back or is somebody within the last few hours come, or somebody who has previously been removed. how can you know that without making inquire any. >> well, i think it's correct that you can't, but there's a difference, justice alito between the question of any individual circumstance and a mandatory policy backed by this survival find that you've got to make the inquire any every case. i think it's as though to use an analogy, if you ask one of your law clerks to bring you the most important preemption cases from the last ten years, and they rolled in the last hundred volumes of the u.s. reports and said they're in there, that doesn't make it work. >> what if they just rolled in whiting? [laughter]. >> that's a pretty good one. >> in the federal statute, in 1373 it says that nobody can prohibit or restrict any government entity from making the inquiry of the federal government, and then

it says that the federal government has any agency, and then it says the federal government has an obligation to respond. nowr now, assuming the statute were limited so nothing happened to this individual, nothing happened to the person that was stopped that wouldn't have happened anyway, all that happens is the person the policeman makes a phone call. that's what i'm trying to get at. if that were the situation, and we said it had to be the zwaigs, then what in the federal statute would that conflict with? >> well, we have two provisions that say any police plan can call. so that's where i'm trying to punish you. -- push you. >> and i think the answer is this. 1373 was enacted in 1976 along with 1357 and 1357 is the provision that sets forth the powers and

authorities of federal immigration officials. it con 1357 g which effectively says that the federal government the attorney general can deputize state officials so long as they obtain adequate training and they're subject to the direction and yol of the attorney general in carrying out immigration functions. then the last provision, g-10 says that nothing that we have said so far should be read to precludes informal cooperation, communication or other informal cooperation in the apprehension, detention and removal of unlawfully present persons. but it's the focus on cooperation. so i don't think can you read into 1373 the conclusion that what congress was intend to go do was to shift from the federal government to the states the authority to set enforcement priorities, because i think cooperation in this context is cooperation in the service of the federal enforcement. >> can i get to a different

question? i think even i or someone else cut you off when you said there were three reasons for 2 (b). putting aside your argument that a systematic cooperation is wrong, you can see it's not selling very well, why don't you try to come up with something else? because i as the chief as said to you, it's not that it's forcing to change your enforcement priorities. you don't have to take the person into custody. so what's left? >> so, let me just summarize what i think the three are and then i could move on to sections 3 and 5. with respect to 2. we think the harassment argument, we think this is a more significant harassment problem. >> please move. >> with respect to an didr in addition there is a structure accountability problem they're enforcing federal law but not

answerable to federal officials and we think there are i am pediments the result of this is to deliver to the federal system a volume of inquiries that makes it harder and not easier to identify who the priority persons are for removal. so those are the three reasons. >> general, you've been trying to get to us focus on section 3. maybe we should let you do that now. >> thank you mr. chief justice. i do think the key think about section 3 is that we -- section 3 is purport to go enforce a federal registration requirement. that's a relationship between the alien and the united states government that's exclusively a federal relationship. it's governed by the terms of 1301-1306, and the way those terms are enforced does have very significant federal interest at its heart, and there is no state police power interest in that federal registration relationship, and i do think

it's very important. just alito raised the question of these categories of people. i think it's quite important to get dollar if i on that if you have come into the country unlawfully, but you have a pending application for asylum, a pending application for temporary protected status because you would have to be removed to a country in which you can't be removed because of the conditions in the country, if you have a valid claim for relief under the violence against women act based on your treatment, if you have a valid claim for relief because you were a victim of human trafficking. in you have a valid relief because you are a victim or witness to a crime, all of those persons are in technical violation of 1306 [a] and it seems they're in violation of that provision stow it's incorrect to say those are people who aren't

in violation of session 3. they are. >> maybe 1306 ought to be amended? we have people out there, a lot of people in violation of it. >> the situation in which no reasonable personal -- person would think the individual ought to be prosecuted, and yet very often the states aren't going to know in fact about asylum status. they can't know because there are regulations that that be kept private to avoid retaliation again the persons making the retaliation. so i think this is a very strong illustration of why the enforcement discretion needs exclusively in federal hands. >> do you have any other case in which the basis for preemption has been your interference with the attorney general's enforcement discretion? i think that's an extraordinary basis for saying the state is preempted. >> i think what's

extraordinary is the state's decision to enact a statute purporting to criminalize the violation of a federal obligation. >> it isn't anything that's criminal under federal law. it's the bank example. >> i think it's different here. what they're doing is using 1306 a to get at the status of unlawful presence. the only people who can be prosecuted are people unlawfully in the country, and they're using to it get at that category of people to essentially use their state criminal law to performance immigration function, and an immigration function is to try to prosecute these people, and by the way, you can prosecute somebody that can be put in jail for 30 days here, but under federal law violation of 1306 a is a continuing offense, so the day they get out they can be

arrested again, and the point of this provision is to drive unlawfully present people out of the state of arizona. >> suppose, and we will assume these are two hypothetical instances. first, the federal government has said, we simply don't have the money for the resources to enforce our immigration laws the way we wish we wish we could do so, but we don't have the money and resources, that's hypothetical. also hypothetical is that the state of arizona has a massive emergency with social disruption, economic disruption, residents leaving the state because of the flood of immigrants. assume those two things. does that give the state of arizona any powers or authority or legitimate concerns that any other state wouldn't have? >> of course they have legitimate concerns in that situation. >> and can they go to their legislature and say, we are

concerned about this, and ask the legislature to enact laws to correct this problem? >> they certainly can enact laws of general application. they can enforce the laws of general application that are on the books. they are as a result of 8 usc, but most importantly, as importantly they can engage in cooperative efforts with the federal government. excuse me. >> no, keep going. >> they can engage in cooperative efforts with the federal government, of which there are many going on in arizona and around the country in order to address these problems. >> general, didn't you say in your brief? i forget where it was. i thought you said that the justice department doesn't get nearly enough money to enforce our immigration laws. didn't you say that? >> of course we have to set priorities. >> exactly. okay. so the state says, well that may be your priorities.

but most of these people that you're not going after or inordinary national percentage of them are here in our state, and we don't like it. they're causing all sorts of problems. so we are going to help you enforce federal law. we are not doing anything else. >> i think what they're going to do in arizona is something quite extraordinary that has significant, practical foreign relations effects and that's the reason this power needs to be vested exclusively in the federal government. what they're going to do is engage in massive incarceration because the obligation under section 2 h is not merely tone force section 2 to the fullest possible extent, but to enforce federal immigration which is what they claim they are doing in section 3 and section 5, so you're going to have a situation of mass incarceration of people who are unlawfully present. that is going to raise of

course a very serious risk of raising significant foreign relations problems, and these problems are real. there's the problem of reciprcal treatment. >> you're saying there's not an interest in enforcing these laws. >> of course there's an b interest in enforcing these laws but the court has recognized that the balance of interest that has to be cleveland in -- achieved in enforcing the laws is delicate an complex and involves the consideration of foreign relations, it involves humanitarian concerns. it also involves public order and public safety. >> i know in your brief you said that there are some illegal aliens who have a right to remain here. and imf just realizing that i don't really know what happens when the arizona know what happens when the arizona police called the federal agency. they give the federal agency

a name? >> i assume so. >> you don't have knowledge? >> they can can come in other ways, but generally they get the name and other information. >> what information does your system have? >> the way this work is there's a system for incoming inquiries. then there's a person at a computer terminal, and that person searches a number of different data basess. there are eight or den different data bases, and they'll check against them to see. >> how does that database tell that you someone is illegal as opposed to a citizen? today, if you use the name sonia sot owe mayer they probably figure out i'm a citizen. is there a citizen? >> this is a significant problem. there isn't a citizen

database. if you have a passport there's a database for passports, but otherwise there is no reliable way in the database to verify that a citizen unless you're in the past port database, so you have circumstances in which people who are citizens are going to come up no match. there's nothing suggesting in the database that they have an immigration problem. >> if they run out of your house without your driver's license or identification, and you walk into a park that's closed, and you're arrested, they make the call to this agency, you could sit there forever while they figure out if you're -- >> while i'm at it, there is attack actual point i'd like to correct. mr. clement suggests it takes ten minutes to process these calls. that's true, but you're in a barbecue -- kue for some

time before. >> is the reason that the government is not focused on people who are here illegally as opposed to the other categories were you talking about, because of priority or because of lack of resources in you suggested that if every illegal alien that you identify is either removed or prosecuted, that that would cause tensions with other governments. so i don't understand if it's because you don't have enough resources or because you don't want to prosecute the people who are simply here illegally, as opposed to something else. >> well, it's a little more complicated than that. i think the point is that with respect to persons who are here unlawfully, there are some who are going to fall in the following priorities there, are those that have been removed and come back and other pryty

categories. because we have resource constraints, and there are only so many beds in detention centers and so many immigration judges werngs want to focus on those priority categories and remove them. there's a second category, and that is individuals who are here in violation technically of 1306 a but who have application for protective status and with respect to those persons, it's affirmatively harmful to think they ought to be prosecuted, and then there's an additional category of people who are not in the second category and not priorities, and we think there, the idea that an yesterday state will engage in a process of mass incarceration of that population, which we do think of what section 2 h permits arizona to do under section 3, raises a significant foreign relations problem.

>> can't you avoid the problem by simply deporting these people? freedom from the jail. send them back to the countries that are objecting. what's the problem with that? >> well, a couple of things. first is i don't think it's realistic to assume that the aggressive enforcement of sections 3 and 5 in arizona is going to lead a mass migration back to countries of origin. it seems the far more likely out come is going to be migration to other states, and that's a significant problem. it's part of the reason this problem needs to be managed on a national basis. beyond that, i do think it's worth bearing in mind here that the country of mexico is in a central role in this situation. between 60-70% of the people that we remove every year, we remove to mexico, and in addition, we have to have the cooperation and of think as the court knows, the

cooperation of the country to which we are removing people who are unlawfully present is vital to make removal work. in addition, we have very significant issues on the border with mexico, and in fact the very issues that arizona is complaining about. >> so we have to enforce our laws in a manner that will please mexico? >> no, issues. -- your honor. >> what i will saying is this point out why the frailers made this power an exclusive national power. it's because the entire country feels the effects of a decision by an individual state, and that's why the power needs to be exercised at the national and not the state level. >> your kerb is the problems that would arise in a bilateral relations if you remove all these peel or a significant person, or a greater person than you are now, nothing in the law requires you to do that. all it does is let you know

where an illegal alien has been arrested, and you can decide, we are not going to initiate removal proceedings against that individual. it doesn't require you to remove one more person than you would like to remove under your priorities. >> right, but the problem we are focused on, mr. chief justice, is not our removal decisions, but arizona's decision to incars rate, and the foreign relations o'problem that that raises. that's why the power has to be x's seared at the national level. >> that arises under three five? >> 2 identifies who is go to be prosecuted. i haven't said anything about section 5 yet, and i don't want to tax the court's patience. i do think the fundamental point about section 5 here is that in 1986, grease fundamentally changed the landscape. grease made a decision in 1986 to make the employment

of aliens a sen -- central concern of national policy, now, my friend mr. clement says that it may be a comprehensive regime for employers. it's not a comprehensive regime for employees, and therefore, there ought not be any enfrens here that the states are precluded from criminalalizing seeking employment in arizona. i think that's not right. employment is one problem, and congress made the decision a comprehensive decision about the sanctions it thought were appropriate to govern, and congress did as justice ginsberg suggested, make judge itself with respect to the circumstances under which employees could be held criminally liable as well as the circumstances under which employer could be held liable, annie think it is useful in thinking about the

judgements. >> field preemption? >> i think we are making both the field and comprehensive argument here justice scalia, and i think it's worth examining specific judgments made in 1986 on the employer side, and after all this is a situation in which the concern here is the employer is being the exploiter and the alien being exploited. congress said the state may not impose criminal sanctions, and the federal government will not impose sanctions for the hiring of employees unless there's a pattern of practice. congress having made that judge itself would have left states free to impose criminal liability on employees merely for seeking work, doing what i think you would expect most law abiding people would do, just find a job so they can feed their families. so i think that's a significant problem. in addition, grease made

clear in the law that the i-9 form could not be used for other purpose than prosecutions for federal antifraud requirements, and if congress wanted to leave states free to impose criminal anges on employees for seeking work, they wouldn't have done that, it seems to me, so i think there are strong indicators in the text that congress did make a judgment, and the judgment was this far and no pather, and it's reasonable congress would have done so for the same kinds of foreign relations concerns i was discussing with respect to section 3. it would be an extra thing to put somebody in jail nearly for seeking work. yet that's what arizona proposes to do under section 5 of this law. now of course, there is an express preemption provision, but the express preemption provision does not operate to the exclusion of implied conflict, so we think those principles apply here.

we think there's a reason why the express preemption division was limited, which congress is making sure there were no laws on the employee's side and therefore no reason for preemption. >> mr. clement. >> thank you mr. chief justice, may it please the court. i'd like to start briefly with the enforcement issues and talk about the other provisions, the last thing i'll say about the enforcement provisions since i think the government's they're that something done ad hoc does preemptive when it's stampic. i think that refutes itself, but i'll just echo there's no interference with enforcement priorities by simply giving the federal government information on which to bring their enforcement priorities to bear, and i think it's clear in the court's florence decision earlier this month. sometimes you pull somebody us for innocuous infractions

and they turn out the most serious offenders, so if you preclude officers, as happened in phoenix, from communicating with the federal government, the federal government will not be able to identify the worst of the worst. if you want an skavm, look at the declaration of officer brett glide well. he pulled somebody over in a routine traffic stop and was shot by the individual. the individual was wanted for attempted murder in el salvador and guilty of illegal reentry into the united states. he was stopped on three previous occasions, and his status wasn't verified. if it had been he would have been apprehended. at least two stops his status wasn't collected because of the city policy, city of phoenix f. the state can do anything, it can at the state level override those policies and say that's not what we want. community policinginging good but we want to maximize communication with the federal authorities. as to section 3, two points

about that. one is i respectfully disagree with the solicitor general as to whether the various things he read off the litany of situations where somebody's technically doesn't have registration would be a violation of 1306 a, and the reason i take that position is that provision says a willful failure to register. may be the prosecutors take the view there's willfulness in that circumstance, but i don't think many judges wochlt i think they would say if you've been told by the federal government you're perfectly fine here and you don't need to register that would be enough to defeat willfulness. >> you're inviting the very sort of conflict that he's talking about, because what's going to happen now, is that if there's no statement by the federal agency of le galty -- legality, the person is arrestsed, and now we are

going to have federal resources spent on trying to figure out whether they have an asylum application, whether they have this, whether they have that, whether tles exempted under this reason, whether the failure to carry was accidental or not. i mean you are involving the federal government in your prosecution. now, you say we are not, because all we are going to show is what, that we got a federal call, we got a federal answer that the person wasn't registered? >> no. we are going to say that we communicated with the federal immigration officials, and they told us this is somebody who is probably fine and doesn't have to register. >> no confrontation clause problem with that. with relying on a call to a federal agency, and the police officer says, you're arrested, you're charged. it's not an illegal alien, or it is an illegal alien? >> my supposition is that they would use that call to not bring the prosecution, so the issue wouldn't arise. >> how about they get a

response, yes it's an illegal alien? >> and they bring a prosecution under section 3. >> so where do they get the records that show that this person is an illegal alien that's not authorized to be here? where do they get it from? >> i think they would get it from the federal authorities. i think it would be admitted. there might be a challenge in that case. this is a facial challenge. i'm not going try to address that potential sixth amendment issue. what i would like to say is two things. one, if there's slob iness in the way that the federal government keeps it is records, i can't imagine that has an effect. the second thing i would say in thinking about section 3 in particular, the analogy is not the fraud and the fda claim in buck man. it's really state for ther tort law that says it's a violation state tort law to not seek the approval for what's tom fiedler eded on the fda device. people that market the

device without getting approval. nobody thinks that preemptive. it serves the federal interest it forces the people to get fda approval, and in the same way this state law will force people to register, which is what the federal government is supposed to want in the first place. so there's no preemption there. there's no conflict. i think it's important to recognize, before 1986, the government was not agnostic about employment of illegal aliens. the government said we are going to cover the employers for the first time. i can't imagine why that would have preemptive effect. thank you your honor. >> thank you mr. clement. general, well argued on both sides. case is submitted. >> now, a discussion of immigration and deportation, from wash warn journal, this is 40 minutes.

-- washington journal. >> monday morning at this time, we have your money segment looking at how taxpayer dollars are spent, what the program is, who benefits from it, and how it affects the bottom line. they were talking about the u.s. deportation system and the roll of the immigration ankus tomorrow's foefrmt here to talk about us is fawn johnson of national journal. thanks for being here. >> welcome. >> we have been focusing on immigration because of the president's change in policy you're preparing for the supreme court to announce the arizona immigration law. it could be 10:00 today. it could be momentarilyty. >> right. >> let's talk how the dee pour takess work and how someone is treated if they're in the country illegally. >> it has to start with them being identified and there's lot of different ways that happens. we should say we know there are about 12 million

undocumented immigrants in this country. it's an estimate, but they need to be identified. that happens a number of ways. often the way it happens, i was just down on the border earlier this year, is to literally catch them out in the desert. sometimes it happen through workplace raids. other times it would happen through random checks that would owe occur if you're trying to get into college, which is some of the issues we have with some of these dream act students, and then it's up to the immigration authorities to decide what they're going to do with that person, but the law is pretty clear. if you are in the country illegally, you are in violation, and you need to be removed. and so then there's a question about what level of punishment will be afforded you. it's rare that you have somebody actually go before a judge and have them charged with some kind of felony that happens generally with rerepeat

offenders f. you're caught illegally you are formally sent out of the country, so it's a process that has multiple levels. i have listened to some of pieces people involved with detention facilities talk about them. it's real can i complicated, but they do a good job trying to assess much effort is needed for each person. some of these cases state in court a long time. some of them get literally put open a bus that they're almost like greyhound on timelines and they get shipped to arizona or texas and walk across the border and they're done. >> a recent story that did you in janish nurnl -- national journal. the obama administration is changing its tune on immigration. talk about some of the changes that have been happening when it comes to enforcement and actually deporting people. >> right, and these are really small changes. but they're the kinds of things that advocate for i am grants, you know legal and illegal, so that that

particular one involved this is not the new waiver process. this is a current waiver process for people who are in some limbo status. they can seek a way before their deportation and it's a rule change. it's a really slight rule change that says if you are going to ask for a waiver, you don't have to leave the country while you're wait informing are a decision. and all that means is it's a little bit easier to seek. it doesn't necessarily mean they're going get them. it just means you don't have to leal the -- leave the country while waiting for a decision. >> talk about immigrations and customs enforcement. do they investigate who is here illegally and do the follow snup. >> that's exactly what they're doing. they're the agents. it's called i.c.e. is the terminology for it. you'll hear that a lot if you listen to anybody who is

versed in immigration, and their they'll audit work places. they'll be locking -- looking for things are there social security numbers that are used multiple times. are there certain name patterns that we are looking for, and they'll do massive audits of an entire company, sometimes big ones like chipotle or something like that so that's one of the things they will do. i've also seen the agents on the ground, uniformed agents on the ground. there are two different wings of the enforcement agency from immigration. there are also the customs and border protection, and those are the guys who actually literally patrol the border, but as soon as they have someone who is undocumented, which is often people they pick up along the border in texas or arizona, they will get

turned over to i.c.e. for some form of proper -- processing. it can be pretty indepth. >> let's look at some numbers for i.c.e., the total fiscal 2012 budgets 5.12 billion, customs operations $2 billion, some other programs transportation and removal to the tune of $276 million, criminal alien program, $200 million. also secure communities and fugitive operations, let's go the phones and take our first call as we talk more about the u.s. deportation program. valerie is an independent caller in columbus, ohio. good morning, valerie. >> yes, good morning. >> go ahead. >> my question is i'd feel more comfortable if we had american bearder patrols. why do you have to speak spanish and i guess

mexican-american to be a border patrol officer in the texas area? my son was in the coast guard, graduated from a college an american, but he did not get the division. i know and a lot of americans know that the preference of spanish-speaking people to get these positions. >> well, valerie they can still be american. they might be spanish-speaking americans to get those jobs. >> well, i used to go back and forth, and i did live in san antonio. in brother-in-law had no problem with no identification going back, but i did appreciate the fact that they made sure i had mine. identification. he goes freely. >> so let me just -- sounds like there's two different parts of that question we want to deal with. one is about how they employ the i.c.e. officials and also the customs and border protection people, and it is true that spanish speaking is helpful, particularly if you were patrolling along the southern border.

keep in mind that's just one piece of that operation. there's also operations on the northern border as well, and the one thing that happens to everybody, all of the agents, these are the guys in uniform who literally they'll walk along the fence on the southern boirder, or they'll be driving along literally chasing guys in the desert, those guys all actually need to go to a course, a four or five week course where they learn essentially elementary spanish, and it's work-related spanish. it's been described to me, the guys i've met down there, the once who aren't native spanish speakers and there are a lot of them in the area, they're not fluent but they can definitely yell out instructions. it's one of those things that makes the job a little bit easier. it's like if you're a restaurant owner, you need to be able to speak spanish to speak withier wait staff, but they also train people on spanish language whatever

they need for the spanish language. it sounded to me like the other part of the caller's question involved essentially how and who they ask for i.d. and she makes a good point. anecdotally, i think there are civil rights groups tracking this more closely, but what i've heard from everybody is if you are hispanic down on the border, you are more likely to be asked for your i.d. where as if you look like me and i crossed through the checkpoint several times when i was down there, they wave you through. i think there's a certain amount of that you need to expect in any policing operation. their job is to look for things that are suspicious, but it is definitely something that civil rights are watching because we don't want to see a racial profiling type of situation. >> steve joins us from mountain view, arkansas on our democrats line. good morning. >> good morning. i got a question and a comment.

who is paying for the deportation of the illegals in this country? is it government tax dollars? >> yeah, that is correct. >> okay. then my comment is, i remember, i think it was either under the reagan administration or clinton, where used to work in chicago, and on these high rises and they would come in with two or three buses and go up into these high rises. there was hundreds of people working in these places, and they would check i.d. and make it short when they left those bes would be filled. my suggestion, what i thought would be to help pay for this, all the employers that hire these illegals laoels -- illegals for their job, there would be a fine per head, $5,000-10,000 per

head, and that money could go into a fund for i.c.e. deportation. >> i guess i should be clearer from the caller's question. it's true our taxpayer dollars do go towards the entire enforcement operation of all the immigration laws, but there's also a fair amount of money that comes into the treasury as a result of things just like employer finds -- fines and those fines have increased significantly the last several years. the last immigration bill that passed congress was in 1996, and it hiked the employer fines quite a bit. there are still some who say they need to go a little bit higher, that there are certain types of violations that employers have that are considered a simple slap on the wrist. but yeah, there is a significant amount of money that comes into the treasury as a result of these fines. it's not enough to be covering the full cost of the entire enforcement operation, and keep in mind also that this is particularly under the bush administration, you saw a

huge increase in the amount of money that went down to border patrol and also immigration services. largely as a result of 9/11 this was an enforcement problem that had been ignored for a long time prior to 9/11, and people realized they knead more infrastructure down there. so they spent a ton of money over the course of the last ten years. what i have seen from looking at the total budget for the agencies that they're leveling out a little bit and the actual administrators, janet napolitano on down will tell you they don't necessarily need more money, but they do need the money they have coming in constant in order to be able to continue to keep the border secure, and it is a significantly less porous border than it was five years ago. >> fawn johnson, correspondent for national journal. looks look at the numbers of dough pour takes. the obama administration has posted with -- boasted with

pride about the number of dee pour taigsz, but there's been a change of policy. in june 2011 the i.c.e. director john morton announced a shift on who is actually deported. tell bus what change and what it means. >> yeah, that was a shift that was intended to go after the worst of the worst first, and i don't actually think it was a huge, complete shift in policy from what they were doing before. if you're a woman, if you're pregnant, if you have children. if you've been here a long time, if you're elderly, those are considered low priority doeprtees.

people who have criminal records, people linked with drug trafficking or human trafficking they're high on the list of priorities, so what morton did was list them out, and this was meant as guidance for immigration officers to look for the ones who are basically in jail who are regular police officers are going to be looking after anyway, so that was what he did last summer. one other thing i might mention in connection with that, another thing that has changed in terms of deportations for the immigration enforcement agency is it used to be even four or five years ago that people who were caught crossing the border were sent back on a voluntary waiver system. this is very efficient in terms of getting them out of the country quickly, so these are people who might be bringing drugs. they might be bringing in people, and what they would do is have them sign a waiver and promise never to do it again and they would

send them back over the border. now each of those people are formally deported, and what that means is if they are caught in the country illegally again, they are charged with full on crime, and it becomes a much more serious offense. >> as part of the immigrations customs enforcement review that's been going on the last year, the "new york times" has reported they've reviewed 411,000 cases, but only 2% have been closed so far.

sign themselves up. some stayed over without realizing the consequences are severe. those are the type of people who come into the country where one part of the family might be legal. they may not realize it. and they say what can i do to get the papers? these are the cases that take a

long time. there are not a ton of resources available. there can be a long backlog that winds of delaying cases for a long time. host: let's hear from david. caller: good morning. i have been wondering about this immigration. our people have terrible crimes and go to prison, they cannot receive any welfare or housing or no assistance. an immigrant comes over they receive welfare. biggest social security. they get more hospitalizations and most americans get. i do not understand this. all the big organizations are harboring illegal working for them.

guest: there are a couple of different things we can talk about. it is a common complaint that a lot of people about what happens. one thing that i should make clear is that just because you are in the country illegally, that this not mean you are a felon. .c.e. agent take that pretty seriously. that is grounds for automatic deportation. that is what the administration has focused on. the other issue is what kinds of benefits are these illegals getting? typecan receive auscultatiohosl benefit and enrolled in schools. it is less common for them to receive medicare and medicaid.

this is an area with a high level of undocumented and the immigrantimmigrants. if you are principles and importers go, we do not always known. they tend to be very conservative about the various benefits they have. i think it is an alabama and arizona where they have these enforcement laws. some of the parents will pull their kids out of school out of fear. my argument, the caller makes a good point. there are some benefit the immigrants have that some americans might not realize they have available to them. they tend to shy away from anything that would offer social

security numbers. from bill, hear independent line. good morning. >> thank you for taking my call. i'd like to know two things. what is the impact of sanctuary cities on deterring the enforcement of immigration law? how ken the federal government go and prosecute arizona for enforcing federal law and yet allow sanctuary cities to exist? thank . >you. guest: there's a little bit of debate. these are areas in which the city council, chicago is a good example.

they have decided that they are going to treat the undocumented population if you come forward with tips, they will not actively go after the undocumented. it is a little bit dicey. local law-enforcement, their job is to protect the street not asking about whether and not somebody is in the country illegally. sometimes they happen upon this. some of the law enforcement i have spoken with, especially ones that support the law, sanctuary cities really do get in the way. they feel like they cannot go forward and ask all the questions they want to ask because of the way that the local city officials have decided that they will run the city. this creates a bizarre

patchwork of the way the country works. some are considered friendly and others not friendly. that will direct the different traffic of where these immigrants might go. it makes the country look a little strange. there are a lot of networks. with the administration, the administration is prosecuting arizona for its law, and not based on sanctuary cities. this is solely a question of whether and not the state is imposing on the federal government's right to enforce laws. it is around a really hot and volatile issue. sometimes i think people forget that. that was very clear during the oral arguments. they're making it clear that it is about preemption.

can the federal government prevent the state government from doing its own thing? >> this story, that it is no accident the obama administration is touting record deportation for the second tier in the row. if they have one related mission, it is to remind people that the u.s. is tougher than ever on illegal immigration. look at some numbers in the department of comment security. total removals, 396,000. 20's term were repeat violators. elevens are for the border removals' you're talking about. talk to us about the white house message. we're seeing others report that there is a softening of the perspective.

>> this is a hard path for the administration to walk. the people who are involved, and janet napolitano understand immigration intimately. her job is to enforce the border. then we have one of president obama's top aides who before she came to the white house was a reward winner for her civil rights activism largely involving immigrants and hispanics. she understands these issues terribly well. she cares deeply about the fate of a lot of these undocumented immigrants. back in 2006 or 2007 when there was a broad immigration building discussed in congress, it is one of the biggest things i have ever covered. there was an argument that people were making. the border is not secure.

we're letting the border fall down. it was among the people that have been pushing for a comprehensive immigration reform system. they said later that they see did the argument when they should not have. border enforcement has consistently gotten better thereof the bush administration. once obama took over, and the up to the ante. they put thousands of troops along the border. they started deporting everybody they could. they were out of the country. janet napolitano has been good about saying to anyone she can come down to the border and look. come look at what we have done. see how much better it is. i took them up on the offer. i was impressed with what they are doing.

they're always flawless. her job has been to say we are tough and we are up holding our and of the bargain. then you have the other and were you have the hispanic community upset there is nothing else done. they are upset with obama because the dream act has failed. it is not changing policy. there's a little bit change in message or the administration is saying we're trying to make sure we're only deporting the guys who we do not like. the ones that we do not think have done anything wrong with kids that came with their parents. we're not going to deport them. we're going to give it ithem soe kind of deferral. they need to make this clear. host: let's hear from michael in wisconsin. we are talking about the u.s. deportation efforts, how much they cost. go ahead.

caller: good morning. my question is on the immigrants who have not broken laws. my in-laws have come to the united states on political asylum. they did not have any criminal record whatsoever. they were detained in their 60's. they were taken to a prison, separated and kept there for six months. i went up there with the money to fly them home. my in-laws and not even have a speeding ticket. they will not accept my money to fly them back home. i just want to know why the government would not accept my money to fly them home instead s? the taxpayer's t t

this is regarding south america. guest: i cannot speak to that particular case. what i can say is that there are some pretty clear and fairly harsh, there's not a lot of room for sympathy votes for anyone. you have to be removed. there are a number of people particularly in the white house and analysts in washington who criticized the current federal law and say some of these penalties are too harsh. if you are found to be in the country illegally, it even if you have not committed any other crime, you can be sent home and embarked 45 for 10 years. no matter what.

i cannot speak to the situation of what happened to the in-laws. this is a system that is more complex than the tax code. it is more politically volatile than the tax code. it needs to be revised and updated and overhauled so that situations like this do not happen. the biggest die-hard conservatives in not want to see a lot of immigration into this country. in order to fix it, it is like a huge elephant parity cannot clip a huge elephant and say it is done. this administration has been taking so many executive actions. this is something they can do on their own. there are a lot of people in congress that have little changes just like this. they cannot get it through.

host: she covers a range of issues including immigration, transportation, and education. her past work includes the "wall street journal" and congress daily. our last caller talked about illegal immigrants who have broken no laws other than being here illegally. they have not committed a crime. the obama administration announced this change and who was going to focus on getting out of the country. last year we saw this change were they're really going after people with criminal records. we're not so much going after parents or those tied legally to the country. how does this actually play out?

how does this play out if you are here illegally? let's say you're here from china. you came in the country on some sort of a student visa. you just stayed. he may be working here illegally. you're not committing any other violations. how realistic is it that you will be deported? guest: i do not even know. it really depends. if you are part of this it ups this considerably. they're only a few companies. it is hard to know who is here illegally and who isn't. it is not something the administration is not looking for. people that are here illegally, we have seen some of this in the reports. some the higher profile people will talk about getting a

driver's license are on the airplane. even if you're not doing anything wrong. it thing to realize is that this new policy that the administration unveiled is that we are not going to deport this group of people. that is the first time to my knowledge ever that we have seen the administration do anything like this. if you're here illegally, something needs to happen. there is not a lot of wiggle room. they have done a lot to try to stretch the wiggle room as far as making it buying to apply for a waiver. .e're not going to do its bit

caller: here is a headline from a few weeks ago. the young students will have this reprieve bell. republican caller, shreveport, louisiana. caller: i have two parts. i'm not willing to answer right off. can an illegal alien in this country vote in this presidential race? guest: no. the only way you can vote is it your u.s. citizen. that would mean all the people who are here legally but not u.s. assistance also cannot vote. i am a conservative. to all you people, i realize mitt romney is not much. he is a good family man.

he does have business experience. that is what we need. he will maintain and try to get some of these illegals out of this country. guest: i do not know if that is true. is the the times and i disagree -- that is the saying that i disagree. it is too early to tell what met rummy with do. this has really risen through her a national dialogue. he gave a major speech to a hispanic group last week where he promised that he would have a new and rational system for processing illegal immigrants. he sounded like he was sympathetic. the response from the hispanic groups and the reform advocates was pretty weak. the one thing i would note is

that i have not heard from romney. the chairman of the judiciary committee. this is a pretty strong enforcement a guide. there are a couple of people in the senate in the same boat. what i have heard from romney is that the republicans in general are upset with obama for taking the step he did in terms of the undocumented students. they say makes it harder for them to come to a solution. there has been no solution. i've been covering this for years. rummy sounds as though he is just as perplexed which i suppose is an inappropriate response. it is a really tough question to get around. i do not think that romney would

do a lot of things differently. he was certainly push on enforcement. host: romney campaign is vague over the immigration move. how many have been identified by secure communities? what percentage has been deported? guest: i do not think any have been let go. the secure communities is one of those things the administration has done to boost their enforcement. it is a formal agreement between a local officer and the federal enforcement officers to share information about the immigration status. this would involve people who have been arrested for any kind of violation, having routine checks. if they are undocumented, they're often deported.

not know the answer of how many have been detained and how many have been deported. the way the system works is if you are caught under -- under this agreement, you are in jail. your deterrent to be in the country illegally. almost everyone is appointed. if there is not, there is some kind of waiver. is it probably be the exception rather than the role. this comes from the hispanic community. they complain. and cannot see any reason to doubt this claim. almost half the deportations are from traffic violations. they're concerned about this.

they feel it is a profiling tool for people who are illegal. host: let's hear from susan in georgia. caller: hello. good morning. one question i hehhave if they change the way they count their deportations, because now they are formally deporting people who are on the border, is in it disingenuous for the obama administration to say that they are deporting more people? regarding the illegals, some of the voted en florida. they are not legally afford to vote but they lie about it. i believe it is a felony to perjure yourself which is what a

lot of them do it in order to get government social services and jobs. is it not a felony to perjure yourself? back a littlealk bit. it just to talk about the deportation policy of the administration. i do not think it is disingenuous to say the deportations have gone through the roof. they are higher than ever. some of those involve people who might have been voluntary waivers. it is like a gray mark on your record. it is cleaning up the process that was used years ago when this was not the problem. i do not think anyone will argue that they have not up to the policy. when it comes to the way that

undocumented immigrants conduct themselves inside the united states, there is a whole range of what is considered violations. as far as i know, there is not a swearing under oath you have to do for almost anything including non driver's license id. a social security number might involve this. there is a whole range of different ways people live in this country. many of them do not have driver's licenses. if they use social security numbers, but many are using them fraudulently. other issues have random numbers they can get without having to swear anything under oath at all. it depends on the state. it depends on how well the state manages these type of things.

wiki go through all the other ways in which enforcement generally is conducted. you can see all the different holes that someone would come through. host: we might see a ruling on the immigration momentarily. does that affect deportation? does it affect the broad national deportation policy? guest: it shouldn't. that is the short answer. under the federal law, the federal government decides to to support and who not to deport. this is not something that was even interested in the arizona law. it deals with how to identify people who are undocumented. it has a few other provisions. it allows local police officers

to direct some without a warrant. these are some things they can do. when the decision comes down it will affect the debate more broadly than the actual questions they're deciding. that is something that i have seen throughout this entire process ever since arizona passed this law. i'm sure we're going to have a more conversation about it. technically deportation happens and will always be in the realm of the federal government. host: we have been talking about the deportation system. thank you so much for being with us. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2012] >> tomorrow we will talk about the decision to shut down most

immigration laws. we'll also look at the fiscal health of states with brian sigtritz. >> july 7 and eighth, we explore the heritage of literary culture of missouri's state capital, jefferson city. >> this is probably our most famous. this is what we like to show to visitors when they come into the archives here. this is a book about harriet tubman. "garyaid -- it is ope

tuchman, the moses of for people -- harriet tubman, the moses of her people." this is the most famous autographs. she cannot read or write. she left her mark. >> watch for this endeavor since the day misery on c-span2 and c- span3. >> in a few moments come at the head of the export import bank said the u.s. is being challenged under the table. in a little less than an hour, we struck down most of arizona's immigration law.

we will show you the oral arguments that happened earlier this year. several live events to tell you about. the senatbill gates weeks aboutr public education. >> i could have told you that here is how it would run. the republicans with book enfeebled. there would be a nominee. they would reveal themselves. it to be close. they would eat that up.

i will tell you what the next phase will be. the media will become more alert to the fact that governor romney has been completely invasive about his positions. he has been all over the lot. he has tried to play a game of hide and seek. i think the news media will be challenged. then the story will be back for a while. that is the nature of this business. >> was this on line with c- span's "road to the white house." >> the head of the export import bank says export opportunities are being challenged by countries that finance trade deals. he said the u.s. is working with other countries including china

to establish what he called a new framework for export finance. this is a little less than an hour. >> hello. welcome. i'm president here at the center. we're really excited for today's remarks. as you all know, they support this by supporting exports to the world. the chairman of the bank has long been the focus. i'm excited to have him here. he will be discussing an annual competitiveness report. we believe the best way to revitalize the u.s. economy is their policies and investments that create jobs and insure

everyone can participate. as we have look for changes exports have been a key driver of growth. his work has been central to the bright spot that we are seeing in the u.s. economy. the heat is being challenged never before. the driving force is striving. u.s. companies and markers are finding it harder to exceed levels of prosperity said americans have enjoyed. they get more access to foreign markets. they can compete on an even playing field. we're seeing challenges in the world. investments are ensuring that we may not see a level playing

field. the work has been so central. in addition to being chairman of lucky torters, we are likel have the chairmen here. we are excited to have him here. he has a long expertise and economic matters. is he also ran the small business administration and the

clinton administration. he has been a fierce advocate for making sure it the american economy can compete here. we're lucky to have him here. >> i have to be a reserve speaker. thank you. i want to thank you in the entire team for hosting me again. it talks about our competitiveness as a country and our ability to create middle- class jobs for the next decade and beyond. all of this rests on america's ability to sell more of what we make around the world.

95% of the world consumers live beyond our borders. a vibrant middle class countries are emerging. take china. there are 250 million middle class people right now. by 2020, at bay will have over 600 million with a purchasing power rivaling the american middle-class. it should be clear to all of us that exports must be a prime driver of american growth for years to come. other countries have reached a similar conclusion. foreign competition is tough and getting tougher every day. that is why president obama has been relentlessly focused on strengthening american exports and manufacturing. fundamental to that is the

export/import bank. with a pretty simple goal, to help grow exports and jobs that they create. we do it by providing export finance for american companies selling into foreign markets. as we did last share, they are releasing their annual competitiveness report. it has findings of a wake-up call for everyone in this room, a city, and america. this is the report. let me take a moment to thank the entire team for putting this remarkable report together. it is a report that is mandated by congress to assess competitiveness against other credit agencies around the

world. specifically the 34 advanced economies for economic cooperation development. on this report card we made on a roll. last year with the third consecutive year of record- breaking activity, we provided $33 billion of support. we financed airplanes, power plants and locomotives. all of these exports traded good paying jobs for american workers. for the first time in five years we did a higher volume of loans than any other eca in the g-7. i would like to think this is all because you're so billion of the work we do. we have a little bit of help. the european debt crisis made

lenders about providing loans. the result, they stepped into the breach and providing more jobs p. this is the good news. school is out. the most striking finding is not what they did but it is what rest of the world is doing. this is changing dramatically and not in ways that necessarily benefit the united states. i want to discuss these changes and show how america can respond. we need to build a broader framework for export finance

that includes more countries and more transparency. we need to reorganize the trade functions which president obama called for last year. in developing, we look beyond regulatory finance which most of our competitors have since 1978. they keep them in the background can also out of the shadows. they wanted to make it transparency. this is not because they were supported by cut-rate financing. this was effective for decades. our report notes that it is showing the age. for the first time this year, it they sent a team of analysts

around the world and many other stops in between. we interviewed buyers, banks, and others about the challenges -- challenging nature of export finance. what did we find? we found a stunning increase in the amount of eca financing underground and in the dark. we found an increased use of unregulated oecd programs as well as the growing presence of in china. what do i mean by unregulated? i mean forms of finance that advanced medium to longer-term interest. xm provides financing, we

find out whether it is necessary. countries operating outside the oecd framework can promote any number of long-term national interests. for example, canada's export agency delivered $100 million to colombia's exit for troll with the understanding that they were getting a look at future investment and procurements positions. or when japan delivered $200 million to india. it is a wink and a nod. finance now for future benefits.

this is happening more and more. unregulated government export finance the seeds all export finance activity with the g7 combined. -- exceeds all export finance activity with the g7 combined. there was an additional 60 billion from the countries. my guess is the estimate is still too low. export finance is a little bit like the wild west. this has dropped from 2/3 two 1/3 of export finance and the last decade. it is continuing to fall. this is why the united states is

working to build a new international architecture. they directed the u.s. and china to begin work on a new space and transparent framework. this is diplomatic speak for we are making progress. the plan is for an agreement to be reached by the end of 2014. it is critically important to american workers that would create this framework. the conditions that allow them to have such a powerful impact last year are transient. the rapid rise is not.

for the foreseeable future, our economic competitors will support their industries that have served. they will continue to try to create their own national champions. this is the new order of things. how america responds will determine if we create the millions of jobs are nations will need. growing exports is essential to future economic growth in creation. that is a fact. president obama knows that. so does every ceo of every major company you can name. they report that america needs to create 21 million new jobs by 2020 to once again achieve full employment. this will require robust economic growth. good only get it from certain

places. government spending and exports. the first are facing big headwinds. exports support 10 million american jobs. the type of good paying jobs many more of. america needs to become the top exporter in the world. we need to reclaim the position we gave up a decade ago to germany and china. it is unacceptable to be in third place. america is a top producer of goods and services in the world. we must sell more of them overseas. we can.

if we stick to the vision of president obama's export initiative which gives our company more financing and other tools they need to compete abroad, then we can leave again. doing more exporting is a no- brainer. american double our exports in the last decade. president obama wants to double it again in half the time. they are not standing still. in the last decade china's exports have grown sixfold. brazilian exports have tripled. that did not happen on its own. competitors were is strategic. others were single-minded the focus on outcomes. they identified industries with growth potentials.

the shows a hands off approach to the maintenance of our trade prospects. we had such a huge domestic market for so long that these were an afterthought. we did not have a real plan. we make great products and have little competition. we were complacent. our complacency went beyond exports. for years the u.s. invested in education, infrastructure, research and the other foundation of economic competitiveness. president obama has been working to rebuild that since the first day he entered office. it is just in time. look around the world right now i europe struggling.

many emerging countries have to grow at 7% 48% just to tread water. china alone is working to create 45 million jobs over the next four years. china and other countries will not be shy about using any tool us much as they can for as much as they can and as long as they can. they will leverage everyone in a attempt to out compete us. but not be long before they have the opportunity to do so. our report from any buyers have many before reaching parity.

they're getting closer with the advanced equipment. airplanes, the number one export could well be next. brazil has a first-rate regional aircraft business. china will still becoming to market that will try to compete directly with this. this is one that continually innovates cutting edge products and services from aircraft to i.t. to farm equipment. i would like to close with a few prescriptions for the export finance elements. america needs to lead the world in developing a new framework

for export finance. in developing that comment they must pay firm need to keep supporting small businesses in fast-growing one. this is exactly what we're going to do. i just returned from russia where they signed a $1 million agreement to boost exports of aircraft and other goods and services. the bank is once again on track for the fourth consecutive year. if america demonstrates that, others will have a lot more incentive to join.

if we fail, international export finance a show the cluster of call dealerships. this is what we need to avoid. we cannot have a race to the bottom to see who can offer the most cut-rate financing. but cannot have it used for six competitive advantage. in the end we all lose and it is not sustainable. if we get everyone playing by the same roles in adhering to the same standards, we will get more stabilization.

we just want everything above board. this is a goal everyone in congress can agree upon. here is a second thing. congress can make it easier to reach organize america's trade related agencies. they can give president obama the fast track authority to submit a reorganization plan. the president made his request last year. it would basically reinstate the authority that presence have enjoyed for the better part of 50 years from franklin roosevelt to ronald reagan. this has often been reactive. responsibility is contused against too many agencies. other countries are more

strategic. many foreign export agencies have their own domestic versions. they take this, poured into one pot and offer their own entry point for their country's business interests. there needs to be a healthy debate about what configurations will ultimately work. congress needs to act and give president obama the authority to make our government more streamlined, effective and responsive to needs of their citizens. these prescriptions come at building a better framework worldwide. these are urgent. this has a deep-seated change in the way washington thinks.

as you know, this came after a bruising reauthorization for congress. in the end we rallied to have american companies and their workers with the financing for the nea. the debate was not just about this. we're proxies' from a rigorous one. i have to say i do not get it. almost no one in congress questions whether the united states should have a strategic and defense interests abroad. when it comes to fighting our economic interests that falls away. we have too many that think america should disarm this. this creates no sense.

their 60 agencies around the world. each and every one of them is working to expand the footprint. this is the world we live in. we've got to see the world as it is. american companies have what it takes to win in the global economy. they can go head-to-head with any company in the world. the can go ahead with those visible and hidden. president obama is right. we need a government that will fight for our economic interests. pro-business and pro trade which means pro export per jobs. that means supporting partnerships between business to grow our economy. there is no time to wait.

it is time to get to work. >> i will moderate as little as i can. i think this is on. we will have questions. i will ask a questions from the beginning. we will let that people identify themselves. you raise the whole specter of the bank reauthorization. you also talked a little bit about the role of state directed capital. the question i have is that

understand the arguments. we are now facing countries like china where a day are morphing the way they do preference capital. do you think we will have this annually? do you think because of the arguments that the broader concern are having any that the federal level? >> the good news is we have a three year reauthorization. the bad news is i think that is still a big debate in this

country. we will see it played out in the next nine months moving onto norm -- towards november. what is the role for government to create jobs and how american companies [unintelligible] the model is not the european model we have dealt with. our partners are operating in ways that are legal but outside. they help their country and their national champions. we have to face up to that reality. it is not part of the romantic view we have of how business operates. >> given that reality, should we change? should we act more? you discussed the need for a free market. if companies -- countries are not following rules of

transparency already, should we become more nationalist in our policy? should we tie our national interest to these decisions more? >> i think we should. the me say this -- let me say this. our portfolio now is in the $100 billion range. the best way we can bring to the rest of the world a better framework is to come with full force and indicate we will not retreat or back off. we will keep meeting our competition and supporting american companies. we have a lot of money to do so. we are more likely in the end to get a better framework. we will stand firm and will not back off. i will say we have to be more rigorous and more robust and if we do that right, we could probably get to a point where everybody backs off a little.

>> he said in the past that when you see countries acting unfairly, you will go the extra mile. can you give us an example of that? >> one example i talked about last year -- where pakistan is looking to buy locomotives. they made this purchase and china offered the financing that was outside of the realm of the acd. we made a decision. the administration, we would match china's financing. if you buy american locomotives -- they are more expensive but that is up to the ge. we made sure we give the same financing offer. by now pakistan is still reviewing that proposal. that is where we can step

forward and say -- we do not want anybody in the united states to lose a sale because someone else gave them cut rate financing in the cannot match it. >> one last question -- there as been a lot of press recently about slowing down in countries like china, india, perhaps brazil. we have had rapid growth in our export which has been one of the areas -- a bright spot for us. do you see that slowing down or do you think our companies will be able to continue to do well even as these markets decline? >> we have had great tailwinds because of those emerging economies that have been growing. they are still growing. there's still a lot of business to be done out there. it will be much more competitive. i just returned from russia.

they want to create 25 million jobs. the only have 70 million today. china wants to have a 45 million jobs. so there will be intense competitive pressure. from the u.s. companies when i was in st. petersburg, companies like ge, siemens in america, boeing, all of them fighting for orders against -- whether airbus or mitsubishi. there is this is to be done. if you think about the world economy, globally we have terrible infrastructure. and we have a lot of unethical business practices. a lot of corruption and lack of transparency and yet the world economy is still growing. if we can fix some of the infrastructure, we can rebuild it. i think there are a lot of opportunities out there for american companies. it'll just the an intensely competitive market jerry >> are

you looking at an emerging markets like africa? we have -- it had not had as much focus as asia. >> one of ivo -- our vice c hairs, lest there be financed about 8% of all exports to sub- saharan africa. last year we did $1.4 billion worth of financing and already this year we can see that number. the prior year was an all-time high. i think it is growing -- after asia, it is the fastest-growing region in the world. the other strong area is less than america. colombia has been growing rapidly. our portfolio in mexico is our largest globally. so i say a lot of bright spots

-- see a lot of bright spots. turkey has been strong. last year refinanced all -- about 20% of exports to turkey. >> in places like africa, there has been a discussion about china using its economic policies empowered to -- to meet its long-term foreign-policy goals. >> china negotiates their national -- natural resources by making these investments in sub- saharan africa. it may be controversial in some ways. china's focus has been a wake-up call for american companies. shined a light. there is a lot of great business to be down there. the governments have more and more stability. technology is changing those

economies in rapid ways. it is a strong market for power -- forming equipment -- farming equipment and air transportation, increasingly a strong market. >> let's turn to the audience. if you can identify yourself. we will try to get reporters and other people. real people. [laughter] he said it, not me. go ahead. >> fire from inside u.s. trade. taking for the opportunity. you for the opportunity. i wanted to ask about the new international framer the u.s. is working on with china. he said in a diplomatic speech, you are making progress but can you give us more of a sense of

what your market on with china. i understand you were talking on a work plan and were supposed to meet next month to work on that. can you give a bigger sense of what the discussion is now? how far away are you from getting to the point where you can launch these negotiations? you also mentioned other countries are involved in the talks. are those members who are currently in the agreement or do you have some of these other countries that he fled -- that you flagged in your speech? is there any indication they are interested in participating? the practices that even oacd

partners are engaging in, the plan to address that in this new international framer? the one new -- do you want new disciplines? >> president obama met with him in february saying a we are directing our respective governments to grade of famer. -- conduct a framework. it was a big step forward. what we're doing now is mapping. what do we mean by long-term finance? short term? and how the we define some of those things? it is a dental the definitional stage. -- it is in the definitional stage. it is including other members double the part of this conversation -- to be a part of

this conversation. when i say it is showing its age, it is probably because that everybody is in it. there is a lot of financing going around it. people like them to be as broad and encompassing as we can. china is the second-largest economy in the world and the largest exporter of goods. that is the foundation we are doing it at. the closest thing to brazil -- we made progress there. we have to see what the next steps are. not nearly as specific as we have with china. >> i'm asking my question as

share of the xm advisory board. >> is that fair? >> he spearheaded the effort with our advisory committee. he bought the recommendation to a cohesive letter be sent to congress. thank you. now i will take the question. >> my question has to do with one of the findings in the advisory committee's letter. it has to do with small business. you talked about whether other countries manage to package their services to their own businesses in a way that is easy to use. you have identified out reach to small businesses in areas where the bank needs to continue. looking for, how do you see the bank of reaching out to that important constituency and

helping them create the jobs and others have ?een ahead of question mark >> i worked under president clinton. i assume that was part of the reason president obama wanted me to come to bring that perspective to it. we did $6 billion worth of loans, guarantees and financing to small business last year. that is up 90% over the last two years. it is not nearly enough. it is probably the hardest part of the area to go forward in. when i was in russia, we talk about slowing the enterprises. we have something called the g11. there is great interest in small business. i have not seen another country

doing much more than lip service, to be honest. one of the great hidden advantages we have as a country is our diaspora community. one of our directors will be meeting in los angeles. finding ways we can have people from other countries, small businesses he start a business here, understand they have relatives in other parts of the world is one way we can grow small businesses. and there is a good international diplomacy aspects to that. we are trying to get more small businesses find more banks that will lend to them. we announced a new product called global credit express', i direct loan from the xm bank to small businesses. the president announced that in february. it is hard to find in the bank

in the country that month -- wants to make a loan for that amount. the transaction is high. we're working with banks on that. >> i'm with bloomberg news. he mentioned -- you mentioned a lot of unregulated activities happening within the countries, until there is a firmer in place, as does the u.s. engaged -- framework in place, does the u.s. engaged? and what incentives to they have to get it right if they are benefiting from this? >> i am unaware of any loan

programs we do of an unregulated nature. that is just not how the u.s. government operates. when aid does work in a country, it is to help build education, health care and so forth, not to further the u.s. commercial and sales efforts. that is different than the way much of the rest of the world operates. we do not operate that way. the incentive for china is -- there's more pressure from the g-20. president obama has made that clear. it ultimately becomes uncompetitive. it becomes too costly to try to run those kinds of below market financing schemes. it may not be immediate but my

example of the car dealerships, at some point they realize it is not sustainable. china is coming to their understanding. there are looking at growth rates moderating in china. there are looking to become part of the wto. it is like the un for commercial interests. i think they're looking to find a way there. president obama has been a strong advocate on that. >> john nelson with wall street. just got back from los angeles working with the federal reserve bank there on how to better leverage federal credit enhancement programs. there was $1.4 billion of

stimulus credits. we came up with a way of leveraging special platforms. don't the other nations have sovereign credit programs that could be impacted for broadening of these kinds of credits internationally? we might be able to show them how those could be enhanced with special support programs. >> i am not familiar with the specifics of the program mentioned but clearly it is in the states -- the interest of the united states to try to get more muscular and a greater stimulus to create growth around the world. we are in a growth deficit. we need to get growth going. i was in business for 20 years.

we always said growth covers a lot. a lot of things can go wrong and they still work out. once we get past growth, we can -- you will not save your way to a better economy. it cannot work that way. >> i am with the sierra club. you talked about transparency and internationally. i wanted to ask about transparency within the u.s. the bank does not disclose the companies involved in projects you're looking at financing and what is being financed until after the deal has been approved. to this process we have seen the bank finance over $800 million

into the fire plant in india despite the fact that the company had not finished the land acquisition. there are losses. there is an ongoing coal crisis in india causing plans to go bankrupt. and the project in south africa. low rates for guaranteed to industry during apartheid and the price to build a plant was being paid for by people who could barely for electricity -- barely afford electricity. even hear, financing kohl exports from places like west virginia -- my question for you is when will we see this type of transparency in the process domestically so that we can have input on the projects and make sure that renewable projects and those helping to build our industries and help people are being financed other than these coal projects that are damaging

to communities. >> we made -- a large products go through two votes by the board. the first is based on its environmental soundness then the subsequent vote is made on the project finance. the two projects he meant to go through a two-step voting process, mandated by our transparent environmental policy which is the only one in the world that is fully transparent. not one of our trading partners has a transparent policy like we do. we are adding -- we are at a disadvantage because be do this in advance of approving any project.

people inside and outside the oecd. we went forward with those two products because they have a portfolio approach to renewable. we're not supporting coal plants that would be environmentally 0bove the target level of 85- units of carbon. it is only in countries such as south africa. we're only looking at it where we will support a country that is making a genuine effort to have a balanced energy program and we want to be a part of that. many of these cases, they're

being built anyway. we have a choice. we can bill them with american equipment and engineering or let them be built by somebody else. but they will be built one way or another. i believe i'd rather build with our technology and engineering and will keep jobs here in in america. >> we have time for one more question. >> i am a management consultant. what do you see is the enduring principle american values that you leverage to build a constituency for your programs here, bipartisan our allies? how do those play into our international competitiveness? >> we are guided -- the xm

bank was started by fdr about trading jobs. can the and italy are two good examples. they can approach -- if it is built by canadians or italians, that is good enough. we require it to be built in america because we are looking to create jobs here at home. our value system and one guy does in making decisions -- is it necessary to close the deal and is a creeping jobs here at home? -- creating jobs here at home? we financed is solar power plant in india. creating good jobs here in the united states. created 600 jobs in india and ongoing 200 full-time permanent

jobs. to me, that is a strong statement. that makes us a welcome country to export products and services to. we're not sending workers over there to do exports and one country and take all the jobs in the country where that exports are dent -- destined for. >> a great ending to a great discussion. thank you for coming again and for your work in manufacturing. >> thank you. [applause]

[captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2012] >> july 7 and eighth, both tv and american history to be explore the culture of missouri's state capital. the local content vehicle and a book to be on the campus of lincoln university. >> this is probably our most famous. be like to show this to visitors when they come to the archives here at the lapage library. this is a book about harriet tubman. the special thing about this -- it was written in 1866.

harriet tubman made her mark on there. that is the most famous autographs, if you want to call it that, of what we have here in the library. obviously she could not read or write, so she left her mark -- the sign of the cross. >> july 7 and eighth. >> i could have told you at the beginning of this year -- here is how we would run. the republican primary and the republicans would look and feeble. that there would be a nominee and republican would rally around the nominee and the true nature of the race would reveal itself. i would have told you that the media would eat that up and then say obama has flagging. this is a race.

the next phase is going to be the media becoming more alert to the fact that governor romney has been completely evasive about his position, has tried to play a game of hide and seek with the american people. i think the news media will be challenged to challenge him to be more forthcoming. then the story will be that for awhile. this is the nature of this business. >> look behind the presidential election process online with our wrote to the white house in the c-span video library. but the supreme court today struck down most of an average on the immigration law while upholding the provision that requires police officers to review a person's immigration status if they suspect the person is in the country illegally. the court struck down provisions that would have made it a crime to -- for illegal immigrants to

seek work in arizona, would have allowed officers to arrest people without a warrant if they had probable cause to believe the person is an illegal immigrant and would have made it a crime for immigrants to be in arizona without their papers. you will hear reaction from arizona governor, opponents of the bill and senate majority leader harry reid. we will also show you the oral arguments from april. on washington journal tomorrow morning, focus on the supreme court's decision. our guests include jess bravin, and rep paul gosar and democrats silvestre reyes. it will also look at the fiscal health of states with the national association of state

budget officers. boston journal is live on c-span every day -- washington journal is live on c-span every day. sunday, david pietrusza is our guest. his passion for u.s. presidents and baseball has resulted in a dozen books, including, "lbj vs jfk vs nixon." and join us live with your calls, e-mails and tweets for sunday at noon eastern on "book and that. the supreme court struck down most of arizona's immigration law but of how the provision that requires police officers to review a person's immigration status if they suspect the person is in the country illegally.

arizona governor says because the heart of the bill was upheld, the legislation was vindicated. she spoke with reporters for about 10 minutes. good morning. to all of you and thank you for being here. let me begin by saying from the moment i signed into law centile arizona has preparing for this year -- this day. let's reflect on what has brought us here today. arizona did not ask for this fight nor did it seek out the task of having to confront the immigration.

we cannot forget that we are here today because the federal government has failed the policy, failed to citizens, failed to protect the rule of law and failed to secure our borders. the failure to secure the border has created issues. illegal immigration. brunt of that failure. we also cannot forget that president obama and his party had both houses in congress for two years and could thus secured our borders. they failed. in response, arizona had no to act and so by following federal law. instead of devoting resources to suing states like arizona, the federal government has spent

time, money and energy on the problem. today is a day when the key of our effort to protect the citizens of arizona take up the fight against illegal immigration in a balanced and constitutional way been vindicated by the highest court in the land. has been proven to be constitutional. to protect its people. prefer strength and for our strength and for our state. i believe it represented what is best for arizona. border related violence and costs due to are

critically important issues to the people of our state and to me. governor and as a citizen. as i have said, this is the day that we have been waiting for. make no mistake, and arizona is ready. of the world us and critics will be watching and waiting, hoping for another opportunity to continue their legal -- their against our state. i fit the that our law enforcement. our men and women have been effectively and in with the constitution. several rights will be protected. racial profiling will not be tolerated. is committed to upholding rule law while

ensuring the constitutional f all in arizona are protected, including prohibiting law enforcement officers from considering race, color or national origin in implementing this provision. direction, that was amended to the importance that the rights are protected. arizona is prepared to move to enforce this law that hard to defend, ever mindful of our right, ever faithful to the and ever worthy of god who is given us that we share together arizona and as americans. thank you. but other sections

including one that would make it a state crime not to work . the court said that you cannot do that so how do you defend having signed something like that? today the state of arizona and send the bill -- senate bill in the heart of the bill was up held unanimously. [inaudible] upheld, it says local law enforcement can assist the federal government in the right to ask to

ability of the state of arizona. that they will not pick them up, what is the point? is illegal, and let them go. i believe we have accomplished a lot in that it up held by the united states and that we will forward, and shut the law enforcement to practice what it supreme court has upheld. law enforcement practice what the supreme court has upheld. on section 2 like there is an opening. this is a

broader victory. >> this is not the end of our journey. we fully expect lawsuits to be filed. ready and prepared if that takes place. [inaudible] >> i think the court upheld the local level -- local the federal government in the immigration laws. authority under reasonable suspicion to question someone who is already been apprehended to certify whether they have legal status in arizona. i would think it would be in effect immediately. to a but my personal opinion is that when it is up held by supreme court, it would be immediately.

in new york university law can you on the ground? >> i believe it does. was the heart of the law. majority of the concern was for -- where the local law enforcement have the ability to seek information from people that they apprehend in the middle of a crime. now what has been validated unanimously by the united states supreme court. >> thank you all for being here. >> he still have the fact that the federal government is saying they're not going to deport these people. don't leave. >> proponents of arizona's immigration law continue to challenge the provision of health by the supreme court.

the part of the college show me your papers. -- the part they call show me your papers. >> good morning. this is a dark day for so rights in america. the supreme court today upheld racial profiling by states and will have the impact of u.s. citizens being profiled and persecuted for no reason other than the race -- other than their race or the color of their skin. this is a disastrous decision for civil rights in america. the court did overturn several other reehensible provisions of the arizona law, however the worst provision, the so-called show me your papers provisioned

that allows law enforcement to profile people on the basis of their accent, the color of their skin or their perceived ethnicity, this disastrous provision, the court upheld. we will continue to fight this provision in courts around the country and it is absolutely essential that this november, latino and asian americans and immigrants all over the country turn out in record numbers to elect representatives who will push for immigration reform and insure that we have justices to uphold this country's great traditions of equality and liberty for everybody. this decision is a step back for civil-rights in the united states and we will fight it. thank you very much regret today was a decision -- thank you very much. outoday's decision, three

of the four provisions were struck down by section 2b that has been up held have had the most impact on our communities so far. it is basically allowing law enforcement to racially profile poor people and people color. we believe this is a decision that does step back so rights. the vow to continue fighting sb 1070 until it is struck down. our civil-rights lawsuit has a number of other civil rights constitutional challenges, including the first amendment, fourth amendment, fifth and 14th. we believe this division is a violation of the equal protection clause and eventually it will be struck down. we need the community to organize and to join us in our litigation. in a state that is considering following arizona with respect to this provision should take heed. we will be challenging those

actions in court. other states know this is not the way to treat immigrants with art averse community and the way that democrats are shifting, we must change the path. we have to stop following hours on the's footsteps of pursuing policies based on hatred and instead try to be inclusive and integrate immigrants into our community and respecting our constitutional rights. >> seiu is the largest union of immigrant workers in the country. we have been following very closely senate bill 1070 and advocating for comprehensive immigration reform. we know that is the only way we are going to create a system that will benefit all workers in this country, whether they be immigrants are natives. wefar as today's decision,

are very pleased that the supreme court -- this is a federal matter. to fix the program immigration system, we need a federal solution and not a state-by- state patchwork of laws that make things worse rather than better. however, we're extremely disappointed the upheld the show me your papers provision. we think that is clearly a violation of human and civil rights and that it will lead to racial profiling. when we look at the way that the sheriff in phoenix has been implementing the law, i think he is going to believe he now has a green light to continue that kind of activity w. we have news for him -- this law

will not stand. we will join with organizations to continue to challenge and show why racial profiling is an integral part of senate bill 1070 and will be extremely harmful to sybarites of workers and people in this country. we will also join with the senate -- center for community change and hundreds of other organizations to make sure that no more states and more politicians are elected who will implement our vote for laws of this kind. the latino community has been watching this division very closely. we will turn out on november. we expect their way be an excess of 12 million latinos to vote. the supreme court -- on

november 6, latinos will have the final word. we will say this law is wrong. it will be overturned by the power of our boat and we will make sure -- of our vote and we will make sure we will have an immigrant system that will do justice to our country of immigrants. thank you. >> we have been helping organizations in phoenix do what they can to fight the brutal and unethical treatment of our immigrant people. and even citizens who happen to look like a mexican or a person from another country. my parents were immigrants from europe. i do not get stopped in any kind of traffic stop just because i look like an immigrant. we are very pleased that some of

the 1070 law has been struck down. the governor, the infamous sheriff with this terrible prison, have been trumpeting how they will win. we have done things like recall the president of our senate because of sponsoring this bill. however, the american legislative exchange council has put this bill out all over the country in other states like alabama and so forth are putting it into law. we need comprehensive immigration reform. we need the administration, politicians of all kinds to come out strong for immigration reform. not just partial measures. the dream act is a very small thing. it could that been done several years ago. millions of families have been

broken in phoenix and elsewhere all over the united states. children have been separated from their parents, put in jail. we are happy to see some progress here by the court in striking down some of the provisions of 1070. i work with organizations who are now demonstrating in phoenix. >> after the supreme court decision, president obama said -- i remain concerned about the practical impact of the remaining provision of the arizona law that requires local law enforcement officials to check the immigration status of anyone they even suspect to be here illegally. no american should ever lived under a cloud of suspicion because of what they look like. going forward, we must ensure

that arizona law enforcement officials do not enforce this law in a manner that undermines the civil-rights of americans. republican presidential candid mitt romney said -- today's decision underscores the need for a president who will lead on this critical issue and work in a bipartisan fashion to pursue a national immigration strategy. president obama has failed to provide any leadership on immigration. congressional reaction to the courts immigration decision included comments from senate majority leader harry reid. >> today the supreme court correctly struck down the vast majority of the mean-spirited arizona law. the immigration law. while i agree with the court's decision of three troubling provisions, four were declared

unconstitutional and was up held. i am concerned about the section they upheld. i'm surprised they did but they did. a measure that allows police to conduct immigration checks on anyone they suspect to be in the country illegally. it gives arizona officials free rein to demean anyone the suspect of being in arizona without documentation. as long as this provision remains, american citizens are being in danger of being detained by police and must carry their immigration papers with them at all time. i say to you mr. president, someone with my skin color or yours, i do not think he will

be carrying your immigration papers with you every place you go but if you are in arizona and you speak with a bit of an accident -- accent or your skin color is brown, you better have your papers with you. it is reassuring that the court left the door open to four other challenges of this on sound provision. i'm optimistic that once that portion of law is implemented, it will be discarded. laws that legalized discrimination are not compatible with laws in the tradition of equal rights. it is disturbing, mr. president, that mitt romney has called the unconstitutional hours on the law -- sorry, mr. president. that mitt romney has called the law and model for immigration reform. anyone who thinks this law

should serve as a model is clearly outside the mainstream. and the united states supreme court agreed with that today. today's partial victory affirms the obama administration was right to challenge this lot and it is a reminder that -- allowing states to have different mechanisms, we need a national solution that continues to secure the border. and improves our dysfunctional illegal -- immigration system and requires 11 million people who are undocumented to pay fines and taxes, learn english, work, pay taxes, stay out of trouble and go to the end of the line to legalize their status. democrats are ready for the challenge. we have been willing to craft a legal solution to this for a

long time. one that is fair, tough and practical. we have been ready to do this for years. we tried on a few occasions. the problem now and has been republicans will not vote for immigration reform. simple as that. we have tried. the first that would be to pass the dream act. which would create a pathway to citizenship for children brought to the country through no fault of their on -- own. they should have the chance to serve their country in the military, go to college and work toward citizenship. unfortunately, mitt romney said he would veto the dream act. his direct it will protect 800,000 young people and focus law enforcement resources where they belong. on deporting criminals. it is not a permanent solution.

president obama's decision was necessary, precisely because republicans have refused to work with democrats on a solution. congress must consider a long- term resolution to protect the dreamers and tackle comprehensive immigration reform. that will take cooperation from our republican colleagues. and it has not been forthcoming. >> justice anthony kennedy wrote the opinion for the supreme court in his 5-3 decision, striking down most of the errors on the immigration law. he was done by chief justice roberts and sotomayor. just as kagen -- justice kagen did not participate. the court upheld the provision that requires police officers to review a person's immigration status if they suspect that person is in the country

illegally. next, the oral arguments in the case this past april. it is one hour, 20 minutes. >> we will hear argument this morning in case a 11-182, arizona versus the united states. >> the state of arizona bears a disproportionate share of the cost of illegal immigration. arizona bar the federal standards as its own.

and attempted to enlist state resources in the enforcement of the uniform federal immigration law. notwithstanding that, the united states took the step of seeking a preliminary injunction to enjoin the statute as preempted on its face before took effect. the ninth circuit agreed with respect to four principles. tonight circuit demanded that abbas on a point to specific authorization in federal statutes -- the 9th circuit demanded -- to specific authorization in federal statutes. the united states cannot 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 the individuals. 1373-c requires federal immigration officials sough respond to inquiries from state and local officials about somebody's immigration status. a goes further. that provision says no federal agency make habit or restrict the ability of state and local officers to communicate with federal immigration officers to ascertain somebody's immigration status. if the - >> could i interrupt? could you tell me what the states view is >? ? the government proposes it should be red on its face one way and i think the state is arguing there is a more natural way to read it. 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 have had probable cause to arrest that individual for some other crime? >> that is exactly right, just as sotomayor. this only operates when somebody has been essentially stopped for some other infraction. if there is reasonable suspicion to try to identify the immigration status, then that can happen. one of the things that -- >> can i stop you there one moment? that is what i thought. 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 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. 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 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 reflected 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 who was going, you know, 60 miles an hour in 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.

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 argument 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. fertilegenerally not a 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 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, >> 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 their objective was to protect to the maximum extent possible the borders. and so anyone who is here illegally, they want to know about and they want to do something about. in other words, different than the current policy. does that mean in that situation, the arizona law would 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 fundamental point about section 2 is to understand its relationship to the other

provisions in the statute. section 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 can make -- they can engage in detention in support of the enforcement offederal

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 -- but let me address something fundamental about section 2. that is true, but i think it doesn't get at the heart of the problem here. 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 apartfrom 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. and 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 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. >> there you go. 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, okay? 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 state can't ask it in any individual case. 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 -- >> okay. 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 stopped somebody or arrested somebody. would that be a violation of federal law? >> no, it wouldn't be, your 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 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 -- >> yes, well -- >> -- that would be okay? >> 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 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 government and are not free to respond to the priorities of the federal officials who are trying to enforce the law in the most effective manner possible. >> i'm sorry. i'm a little confused. general, i'm terribly confused by your answer. okay? and -- and i don't know that you're focusing in on 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 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 s.b. 1070. it stands to reason that the legislature thought that that wasn't sufficient and there needed to be more. and given that you have a population in arizona of 2 million latinos, of whom only 400,000 at most are there unlawfully -- >> sounds like racial profiling to me. >> and they're -- and given that what we are talking about is the status of being unlawfully present -- >> do you have the statistics as to how many arrests there are and how many -- and what the -- percentage of calls before 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 fiscal year 2009, there were 80,000 inquiries and -- >> what does this have to do with federal immigration law? i mean, it may have to dowith racial harassment, but i thought you weren't relying on that. >> the -- >> are you objecting to harassing the -- the people who have no business being here? is that -- surely you're not concerned about harassing them. they've been stopped anyway, and all you're doing is calling up to see if they're illegal immigrants or not. so you must be talking about other people who have nothing to do with -- with our immigration laws. okay? 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 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're 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 don't know what your answer is, and that's why i'm asking. >> yes. we would think it would ameliorate -- >> and if so, what? >> -- it would ameliorate the practical problem; but, there's 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. okay? i stopped somebody else, is he legal or illegal, let me check -- it's, oh, he's illegal. okay, 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's here illegally or not. >> no, i -- i don't think that's right. i think we want to be able to cooperate and focus on 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 s.b. -- 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's 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 -- with our whole scheme here because it's prosecuting all these bank robbers. >> well, of course, no one would -- >> now, would anybody listen to that argument? >> 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 now or -- >> yes. >> -- or does this argument relate 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, then that might be somebody who you would want to arrest and -- and remove. but how can you determine that without making the -- the inquiry in the first place? >> well, in any individual

case, that's correct. you -- you would need to make the inquiry in the first place. it won't always be correct, if you're arresting somebody based on probable cause that they've committed a serious crime, and they -- and they -- the inquiry into whether -- into their status will be enough to identify that person for priority -- >> well, what if they just, they stop somebody for a traffic violation, but they want to know whether this is a person who previously was removed and has come back, or somebody who's just -- just within the last few hours possibly come -- well, let's just -- somebody who's previously been removed? how can you know that without making an inquiry? >> well, i think -- i think it's correct that you can't, but there's a -- there's a difference, justice alito, i think, between the question of any individual circumstance and a mandatory policy backed by this civil fine, that you've got to make the inquiry in every case. i mean, i think it's as though -- if i can use an analogy, if you ask one of your law clerks to bring you the most important preemption cases from the last 10 years, and they rolled in the last -- the last hundred volumes of the u.s. reports and said, well, they're

in there. that -- that doesn't make it -- >>what if they just rolled in whiting? (laughter.) >> that's a pretty good one. >> look, in the federal statute, it says in 1373 that nobody can prohibit or restrict any government entity from making this inquiry of the federal government. and then it says that the federal government has -- any agency -- and then it says the federal government has an obligation to respond. now, assuming the statute were limited as i say, so nothing happened to this individual, nothing happened to the person who's stopped that wouldn't have happened anyway, all that happens is the person -- the policeman makes a phone call. now that's what i'm trying to get at. if that were the situation, and we said it had to be the situation, then what in the federal statute would that conflict with, where we have two provisions that say any policeman can call?

>> so -- >> what's the -- that's --that's where i'm trying to push you. >> yes. >> because in my mind, i'm not clear what your answer is to that. >> i understand the question. and i think the answer is this: 1373 was enacted in 1996, along with 1357. and 1357 is the provision that sets forth the powers and authorities of federal immigration officials. it contains 1357(g), which effectively says that federal -- that the federal government, the attorney general, can deputize state officials, so long as they're -- they obtain adequate training and they're subject to the direction and control of the attorney general in carrying out immigration functions. then the last provision, (g)(10), says that nothing that we've said so far should be read to preclude informal cooperation, communication or other informal cooperation in the apprehension, detention and removal of unlawfully present persons. but it's the focus on

cooperation. and i think you have to -- so i don't think you can read into 1373 the -- the conclusion that what congress was intending to do was to shift from the federal government to the states the authority to set enforcement priorities, because i think the cooperation in this context is cooperation in the service of the federal enforcement. >> can i get to a different question? i think even i or someone else cut you off when you said there were three reasons why -- 2(b). putting aside your argument that this -- that a systematic cooperation is wrong -- you can see it's not selling very well -- why don't you try to come up with something else? because i, frankly -- as the chief has said to you, it's not that it's forcing you to change your enforcement priorities. you don't have to take the person into custody. so what's left of your argument? >> so let me just summarize

what i think the three are, and then maybe i can move on to sections 3 and 5. with respect to -- with respect to 2, we think the harassment argument -- we think this is a more significant harassment problem than was present in hines -- >> please move more -- >> with respect to -- in addition, we do think that there is a structural accountability problem in that they are enforcing federal law but not answerable to the federal officials. and third, we do think there are practical impediments, in that the -- the result of this is to deliver to the federal system a -- a volume of inquiries that makes it harder and not easier to identify who the priority persons are for removal. so those are the three reasons. >> general, you have been trying valiantly to get us to focus on section 3, so maybe we should let you do that now. >> thank you, mr. chief justice. the -- i do think the key thing about section 3 is that we -- is that section 3 is purporting to enforce a federal registration requirement. that's a relationship between the alien and the united states

government that's exclusively a federal relationship. it's governed by the terms of 1301 through 1306. and the way in which those terms are enforced does have very significant federal interest at its heart, and there is no state police power interest in that federal registration relationship. and i do think -- i think it's a very important -- justice alito raised the question of these categories of people. i think it's -- it is quite important to get clarity on that. the -- if you are -- if you have come into the country unlawfully, but you have a pending application for asylum, a pending application for temporary protective status because you would have to be removed to a country to which you can't be removed because of the conditions in the country, if you have a valid claim for relief under the violence against women act based on your treatment, if you have a valid claim for relief because you are a victim of human trafficking, if you have a valid claim for relief because you are the victim of a crime or a

witness to a crime, all of those persons are in technical violation of 1306(a). and -- and it seems to me they -- they are in violation of 1306(a), so my friend, mr. clement, just is not correct in saying that those are people who aren't in violation of 1306(a) and, therefore, aren't in violation of -- of section 3. they are in violation. >> well, maybe 1306(a) ought to be amended, then. i mean, we have statutes out there, that there a lot of people in violation of it and -- well, the attorney general will take care of it. is that how we write our criminal laws? >> but it's a situation in which no reasonable person would think that the individual ought to be prosecuted, and yet, very often, the states aren't even going to know. in fact, about asylum status, they can't know because there are regulations that require that to be kept private to avoid retaliation against the person making the application. and so, this is -- so this is -- this is, i think, a very strong illustration of why the enforcement discretion over section 3 needs to be vested

exclusively in the federal government. >> again, i ask you, do you have any other case in which the basis for preemption has been you are interfering with -- with the attorney general's enforcement discretion? >> well, this is -- >> i think that's an extraordinary basis for saying that the state is preempted. >> i think what's extraordinary about this, actually, justice scalia, is the state's decision to enact a statute purporting to criminalize the violation of a federal registration obligation. and i think that's the problem here. and they're doing it for a reason -- >> it's not criminalizing anything that isn't criminal under federal law. >> but -- but what -- >> it's the bank. it's the federal bank example -- >> well, no. >> -- a state law which criminalizes the same thing that the federal law does. >> i think it's quite different. what they're doing here is using 1306(a) to get at the status of unlawful presence. the only people who can be prosecuted under section 3 are people who are unlawfully present in the country. that's what the statute says. and they're using it to get at that category of people, to essentially use their state

criminal law to perform an immigration function. and the immigration function is to try to -- to prosecute these people. and, by the way, you can prosecute somebody, they can be put in jail for 30 days here, but under federal law, a violation of 1306(a) is a continuing offense. so the day they get out of jail for that 30 days, they can be arrested again, and this can happen over and over again. and the point of this provision is to drive unlawfully present people out of the state of arizona. >> suppose --suppose -- well, assume these are two hypothetical -- two hypothetical instances. first, the federal government has said we simply don't have the money or the resources to enforce our immigration laws the way we wish. we wish we could do so, but we don't have the money or the resources. that's the first -- just hypothetical. >> you said that in your brief, didn't you? >> also hypothetical is that the state of arizona has -- has a massive emergency, with social disruption, economic

disruption, residents leaving the state because of flood of immigrants. let's just assume those two things. does that give the state of arizona any powers or authority or legitimate concerns that any other state wouldn't have? >> of course, they have legitimate concerns in that situation. and, justice kennedy -- >> and can they go to their legislature and say, we're concerned about this, and ask the legislature to enact laws to correct this problem? >> they -- they certainly can enact laws of general application. they can enforce the laws of general application that are on the books. they already -- as a result of 8 u.s.c. 1621, it's clear that they are under no obligation to provide any state benefits to the population. but i think, most importantly, they can -- and -- not most importantly, but as importantly, they can engage in cooperative efforts with the federal government --excuse me. i see my -- >> no, keep going. >> they can -- they can engage in cooperative efforts with the federal government, of which

there are many going on in arizona and around the country, in order to address these problems. >> general, didn't you say in your brief -- i forget where it was -- i thought you said that the -- the justice department doesn't get nearly enough money to enforce our immigration laws? didn't you say that? >> of course, we have to set priorities. there are only -- >> exactly. okay.so the state says, well, that may be your priorities, but most of these people that you're not going after, or an inordinate percentage of them, are here in our state, and we don't like it. they're causing all sorts of problems. so we're going to help you enforce federal law. we're not going to do anything else. we're just enforcing federal law. >> well, what i think they're going to do in arizona is something quite extraordinary, that has significant real and practical foreign relations effects. and that's the problem, and it's the reason why this power needs to be vested exclusively in the federal government. what they're going to do is engage, effectively, in mass incarceration, because the obligation under section 2(h), of course, is not merely to

enforce section 2 to the fullest possible extent at the -- at the risk of civil fine, but to enforce federal immigration law, which is what they claim they are doing in section 3 and in section 5. and so -- so you're going to have a situation of mass incarceration of people who are unlawfully present. that is going to raise -- poses a very serious risk of raising significant foreign relations problems. and these problems are real. that is the problem of reciprocal treatment of united states citizens in other countries. >> so you're saying the government has a legitimate interest in not enforcing its laws? >> no. we have a legitimate interest in enforcing the law, of course, but it needs to be -- but these -- this court has said over and over again, has recognized that the -- the balance of interest that has to be achieved in enforcing the -- the immigration laws is exceedingly delicate and complex, and it involves consideration of foreign relations. it involves humanitarian concerns, and it also involves

public order and public safety. >> general, when --when -- i know in your brief, you had -- you said that there are some illegal aliens who have a right to remain here. and i'm just realizing that i don't really know what happens when the arizona police call the federal agency. they give the federal agency a name, correct? >> i assume so, yes. >> you don't really have knowledge of what -- >> well, they -- i mean, it can come in lots of different ways, but generally, they'll get a name and some other identifying information. >> all right. and what does the computer have? what information does your system have? >> yes. so the way this works is there's a system for -- for incoming inquiries. and then there's a person at a computer terminal. and that person searches a number of different databases. there are eight or ten different databases. and that person will check the name against this one, check the name against that one, check the name against the other one, to see if there are any hits. >> well, how does that database tell you that someone is illegal as opposed tci