apart from section 3 and section 5, take those off the table, you have no objection to section 2. general verrilli: 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 ttake 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 chief justice roberts: exactly. the federal government has to decide where it's going to use its resources. and what the state is saying, here are people who are here in violation of federal law, you make the decision. and if your decision is you don't want to prosecute those people, fine, that's entirely up to you. that's why i don't see the problem with section 2(b). general verrilli: 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

chief justice roberts: only under section 3 and section 5. general verrilli: 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 chief justice roberts: well, let's say you're worried about general verrilli: or like 30 days, forgive me; 6 months for employment. chief justice roberts: 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. general verrilli: well, we're not saying the state can't ask it in any individual case. we recognize that section chief justice roberts: you think there are individual cases in which the state can call the federal government and say: is

this person here illegally? general verrilli: yes, certainly, but that doesn't make chief justice roberts: okay. so doesn't that defeat the facial challenge to the act? general verrilli: 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 justice alito: 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? general verrilli: 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

justice alito: 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 general verrilli: yes, well justice alito: that would be okay? general verrilli: 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 justice sotomayor: general general verrilli: i mean, the line is mandatory versus discretionary justice alito: that's what i can't understand because your argument you seem to be saying that what's wrong with the arizona law is that the arizona legislature is trying to control what its employees are doing, and they have to be free to disregard the desires of the arizona legislature, for whom they work, and follow the priorities of the federal government, for whom they don't work. general verrilli: 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 justice kennedy: but the hypothetical is that that's all the legislature is doing. general verrilli: 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. justice sotomayor: 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 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? general verrilli: well justice sotomayor: taking out the other provisions, taking out any independent state- created basis of liability for being an illegal alien? general verrilli: 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 justice scalia: sounds like racial profiling to me. general verrilli: and they're and given that what we're talking about is the status of being unlawfully present justice sotomayor: do you have the statistics as to how many arrests there are and how many and what the percentage of calls before the statute? general verrilli: 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 justice scalia: what does this have to do with federal immigration law? i mean, it may have to do with racial harassment, but i thought you weren't relying on that. general verrilli: the justice scalia: 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 have been stopped anyway, and all you're doing is calling up to see if they are illegal immigrants or not. so you must be talking about other people who have nothing to do with with our immigration laws. okay citizens and and other people, right? general verrilli: and other and other people lawfully present in the country, certainly, but this is justice scalia: but that has nothing to do with the immigration law general verrilli: hines is justice scalia: which is what you're asserting preempts all of this activity. general verrilli: 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 justice breyer: well, let's let me just go back, because i think i'm trying to get focused the question i think others are asking, and one way to focus it is the same question i asked mr. clement. think of 2(b), the first sentence. all right? now, i can think i'm not saying they are right, but if that means you're

going to hold an individual longer than you would have otherwise, i can think of some arguments that it is preempted, and some replies. so keep that out of it. suppose that we were to say, that sentence, as we understand it, does not raise a constitutional problem as long as it is interpreted to mean that the policeman, irrespective of what answer he gets from ice, cannot detain the person for longer than he would have done in the absence of this provision. now, in your view, is there any preemption exemption argument against any preemption argument against that sentence as i have just interpreted it? i don't know what your answer is, and that's why i'm asking. general verrilli: yes. we would think it would ameliorate justice breyer: and if so, what? general verrilli: it would ameliorate the practical problem; but, there is still a structural problem here in that this is an effort to enforce

federal law. and the under the constitution, it's the president and the executive branch that are responsible for the enforcement of federal law chief justice roberts: it is general verrilli: and chief justice roberts: 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? general verrilli: it is, mr. chief justice. chief justice roberts: 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. general verrilli: 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 chief justice roberts: under 2(b), the person is already stopped for some other reason. he's stopped for going 60 in a 20. he's stopped for drunk driving. so that decision to stop the individual has nothing to do with immigration law at all. all that has to do with immigration law is the whether or not they can ask the federal government to find out if this person is illegal or not, and then leave it up to you. it seems to me that the federal government just doesn't want to know who is here illegally or not. general verrilli: 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. justice scalia: anyway, what what's wrong about the states enforcing federal law? there is a federal law against robbing federal banks. can it be made a state crime to rob those banks? i think it is. general verrilli: i think it could, but i think that's quite justice scalia: but does the attorney general come in and say, you know, we might really only want to go after the professional bank robbers? if it's just an amateur bank robber, you know, we're we're going the let it go. and the state's interfering with our with our whole scheme here because it's prosecuting all these bank robbers. general verrilli: well, of course, no one would justice scalia: now, would anybody listen to that argument? general verrilli: of course not. justice scalia: of course not. general verrilli: 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 justice kennedy: now, are you talking about 3 now or general verrilli: yes.

justice kennedy: or does this argument relate to 2 as well? general verrilli: this is an argument about section 3. justice alito: well, could i ask you this about 2, before you move on to that? how is a this is just a matter of information. how can a state officer who stops somebody or who arrests somebody for a nonimmigration offense tell whether that person falls within the federal removal priorities without making an inquiry to the federal government? for example, i understand one of the priorities is people who have previously been removed, then that might be somebody who you would want to arrest and and remove. but how can you determine that without making the the inquiry in the first place? general verrilli: well, in any individual case, that's correct. you you would need to make the inquiry in the first place. it won't always be correct, if you're arresting somebody based on probable cause that they have committed a serious crime, and they and they the inquiry into whether into their status will be enough to identify that person for priority justice alito: well, what if they just, they stop somebody for a traffic violation, but they want to know whether this

is a person who previously was removed and has come back or somebody who has just just within the last few hours possibly come well, let's just somebody who's previously been removed? how can you know that without making an inquiry? general verrilli: well, i think i think it's correct that you can't, but there is a there is difference, justice alito, i think, between the question of any individual circumstance and a mandatory policy backed by this civil fine, that you've got to make the inquiry in every case. i mean, i think it's as though, if i can use an analogy, if you ask one of your law clerks to bring you the most important preemption cases from the last 10 years, and they rolled in the last the last hundred volumes of the u.s. reports and said, well, they are in there. that that doesn't make it chief justice roberts: what if they just rolled in whiting? (laughter.) chief justice roberts: that's a pretty good one. justice breyer: look, in the federal statute, it says in 1373 that nobody can prohibit or restrict any government entity from making this inquiry of the federal government. and

then it says that the federal government has any agency and then it says the federal 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? general verrilli: so justice breyer: what's the that's that's where i'm trying to push you. general verrilli: yes. justice breyer: because in my mind i'm not clear what your answer is to that. general verrilli: 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 are 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.

justice sotomayor: can i get to a different question? i think even i or someone else cut you off when you said there were three reasons why 2(b). putting aside your argument that this that a systematic cooperation is wrong you can see it's not selling very well why don't you try to come up with something else? because i, frankly as the chief has said to you, it's not that it's forcing you to change your enforcement priorities. you don't have to take the person into custody. so what's left of your argument? general verrilli: 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 justice sotomayor: please move general verrilli: 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 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. chief justice roberts: general, you have been trying valiantly to get us to focus on section 3, so maybe we should let you do that now. general verrilli: 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 very important justice alito raised the question of these categories of people. i think it is quite important to get clarity on that. the if you are if you have come into the untry 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, is not correct in saying that those are people who aren't in violation of 1306(a) and, therefore, aren't

in violation of section 3. they are in violation. justice scalia: 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? general verrilli: 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. justice scalia: again, i ask you, do you have any other case in which the basis for preemption has been you are interfering with the attorney general's enforcement discretion? general verrilli: well, this is justice scalia: i think that's an extraordinary basis for saying that the state is preempted. general verrilli: i think what is 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 are doing it for a reason justice scalia: it's not criminalizing anything that isn't criminal under federal law. general verrilli: but but what justice scalia: it's the bank. it's the federal bank example general verrilli: well, no. justice scalia: a state law which criminalizes the same thing that the federal law does. general verrilli: i think it's quite different. what they are 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 are 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. justice kennedy: 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. justice scalia: you said that in your brief, didn't you? justice kennedy: 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? general verrilli: of course, they have legitimate concerns in that situation. and, justice

kennedy 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? general verrilli: 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 chief justice roberts: no, keep going. general verrilli: 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. justice scalia: general, didn't you say in your brief i forget where it was i thought you said that the justice department doesn't get nearly enough money to enforce our immigration laws? didn't you say that? general verrilli: of course, we have to set priorities. there are only justice scalia: 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 are 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. general verrilli: well, what i think they are 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 are 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. it is the problem of reciprocal treatment of the united states citizens in other countries. justice kennedy: so you're saying the government has a legitimate interest in not enforcing its laws? general verrilli: 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 justice sotomayor: general, when when i know 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?

general verrilli: i assume so, yes. justice sotomayor: you don't really have knowledge of what general verrilli: well, they i mean, it can come in lots of different ways, but generally they will get a name and some other identifying information. justice sotomayor: all right. and what does the computer have? what information does your system have? general verrilli: yes. so the way this works is there is a system for for incoming inquiries. and then there is 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. justice sotomayor: well, how does that database tell you that someone is illegal as opposed to a citizen? today, if you use the names sonya sotomayor, they would probably figure out i was a citizen. but let's assume it's john doe, who lives in grand rapids. so they are legal. is there a citizen database? general verrilli: the citizen

problem is actually a significant problem. there isn't a citizen database. if you justice sotomayor: i'm sorry, there is or there isn't? general verrilli: there is not. if you have a passport, there is a database if you look "passports." so you could be discovered that way. but otherwise there is no reliable way in the database to verify that you are a citizen unless you are in the passport database. so you have lots of circumstances in which people who are citizens are going to come up no match. there's no there is nothing suggesting in the databases that they have an immigration problem of any kind, but there's nothing to justice sotomayor: so if you 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, you they make the call to this agency. you could sit there forever while they general verrilli: yes, and i justice sotomayor: figure out if you're general verrilli: while i'm at it, there is a factual point i think i'd like to correct. mr. clement suggested that it takes 10 minutes to process these calls. that's true, but youe in a queue for 60 minutes before it takes the 10 minutes to process the call. so the average time is 70 minutes, not

10 minutes. chief justice roberts: i had a little wasn't sure about your answer to justice kennedy. is the reason that the government is not focused on people who are here illegally as opposed to the other categories we were talking about because of prioritization or because of lack of resources? you suggested that if the every illegal alien that you identify is either removed or prosecuted, that that would cause tensions with other governments. so i 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. general verrilli: well, it's a little more complicated than that. i think the point is this, that with respect to persons who are unlawfully present, there are some who are going to fall in our priority categories, there are those who have committed serious offenses, there are those who have been removed and have come back, and

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

justice scalia: well, can't you avoid that particular foreign relations problem by simply deporting these people? look, free them from the jails general verrilli: i really think justice scalia: and send them back to the countries that are that are objecting. general verrilli: this is a justice scalia: what's the problem with that? general verrilli: well, a couple of things. first is, i don't think it's realistic to assume that the aggressive enforcement of sections 3 and 5 in arizona is going to lead to a mass migration back to countries of origin. it seems a far more likely outcome is going to be migration to other states. and that's a significant problem. that's part of the reason why this problem needs to be managed on a national basis. beyond that, i do think, you know, the it's worth bearing in mind here that the country of mexico is in a central role in this situation. between 60 and 70 percent of the people that we remove every year, we remove to mexico. and in addition, we have to have the cooperation of the mexicans. and i think as the court knows from

other cases, the cooperation of the country to whom we are to which we are removing people who are unlawfully present is vital to be able to make removal work. in addition, we have very significant issues on the border with mexico. and in fact, they are the very issues that arizona is complaining about in that justice scalia: so we have to we have to enforce our laws in a manner that will please mexico. is that what you're saying? general verrilli: no, your honor, but what it does no, your honor, i'm not saying that justice scalia: sounded like what you were saying. general verrilli: no, but what i am saying is that this points up why the framers made this power an exclusive national power. it's because the entire country feels the effects of a decision conduct by an individual state. and that's why the power needs to be exercised at the national level and not the state level. chief justice roberts: and your concern is the problems that would arise in bilateral relations if you remove all of these people, or a significant percentage or a greater percentage than you are now. nothing in the law requires you to do that. all it does is lets

you know where that an illegal alien has been arrested, and you can decide, we are not going to initiate removal proceedings against that individual. it doesn't require you to remove one more person than you would like to remove under your priorities. general verrilli: right, but the problem i'm focused on we're focused on, mr. chief justice, is not our removal decisions, but arizona's decision to incarcerate, and the foreign relations problem that that raises. that's why this power has got to be exercised at the national level. chief justice roberts: and that arises under 3 and 5. general verrilli: correct. chief justice roberts: but not 2. general verrilli: well, 2 identifies the population that's going to be prosecuted under 3 and 5. i haven't i've been up here a long time. i haven't said anything about section 5 yet. and i don't want to tax the court's patience, but if i could spend a minute on section 5. chief justice roberts: section 5. general verrilli: the i do think the fundamental point about section 5 here is that in 1986, congress fundamentally changed the landscape. congress made a decision in 1986 to make

the employment of aliens a central concern of national immigration policy. and this court has described the 1986 law as a comprehensive regime. now, what my friend, mr. clement, says, is that it may be a comprehensive regime for employers; it's not a comprehensive regime for employees. and therefore, it's there ought not be any inference here that the states are precluded from criminalizing efforts to seek or obtain employment in arizona. but i really think that's not right. the employment is one problem. and congress tackled the problem of employment and made a decision, a comprehensive decision, about the sanctions it thought were appropriate to govern. and congress did, as justice ginsburg suggested, make judgments with respect to the circumstances under which employees could be held criminally liable, as well as the circumstances under which employers could be held liable. and i think it is useful in

thinking about the judgments congress actually made justice scalia: so field preemption; is that your argument with respect to general verrilli: it's both. i think we're making both a field and a conflict preemption argument here, justice scalia. and the i think it's worth examining the specific judgments congress made in 1986. on the employer's side and, after all, this is a situation in which the concern here is that the employer is in a position of being the exploiter and the alien of being the exploited on the employer's side, congress said that states may not impose criminal sanctions, and even and the federal government will not impose criminal sanctions for the hiring of employees unless there's a pattern or practice. it seems quite incongruous to think that congress, having made that judgment and imposed those restrictions on the employer's side, would have left states free to impose criminal liability on employees merely for seeking work, for doing what you i think would expect most otherwise law-abiding people to do, which is to find a job so they can feed their families. so i think that's a significant problem.

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

we think there's a reason why the express preemption provision was limited to the employer's side, which is that after decanas laws had been enacted on the employer's side, and with congress was making clear that those were preemptive, there were no laws on the employee's side at the time. and therefore, no reason for preemption. chief justice roberts: thank you, general. general verrilli: thank you, mr. chief justice. ### >> of think the government rather unusual theory that something is ok when done ad hoc becomes preventive. let me just echo there is no interference with enforcement priorities by simply giving the federal government information on which to bring their enforcement priorities to bear. this is illustrated by the point the court made in the florence

decision earlier this month is that sometimes you pond -- pull someone over for an innocuous infraction and they turn out to be a serious offender. if you prevent officers from communicating with the federal government, the federal government will not be able to identify the worst of the worst. look at the declaration of officer brett blidewell. he pulled someone over in a routine traffic stop and was shot by the individual. the individual was wanted for attempted murder and else eldora and was accused of illegal entry in the united states and was stopped on three previous occasions and his status was not verified. if it had been, he had -- he would have been apprehended. his emigration status was not checked because of a state statute. community policing is all well and good but we want to

maximize communication with federal authorities. the enforcement policy and priority some origins arguments in the does not work. section 3 -- i respectfully disagree with the solicitor general as to whether the various things that he read off, lives in a of situations where someone is technically doesn't have a registration would be a violation of 1306 (a) it's as a willful registered -- it will willful -- a willful purpose to not register -- if you have been told by the federal government your part refiner and you don't need to register that that was good enough to defeat a finding of willful mess. >> you are inviting this sort of situation he is talking about. what will happen now is that if there is no statement by the

federal agency of legality, the person is arrested, and now we will have federal resources spent on trying to figure out whether they have an asylum application, whether they have this or that and whether they are exempted under this reason and whether there is the reason to carry which is accidental or not. you are involved in the federal government in your prosecution. you may say we are not because all we're going to show is that we got a federal answer that the person was not registered? >> we will say we communicate with the federal immigration officials and this is someone who does not have to register. >> with relying on a call to a federal agency and the police of zero says you are charged, it is not an illegal alien or it is an illegal alien cannot my supposition is that they would use that call to not bring the

props -- prosecution. >> how about they get a response, yes, it is an illegal alien theme and they bring a prosecution under section 3. >> where to they get the records that show this person is in a legal alien not authorized to be here? who do they get it from? >> i think they will get from the federal authorities. i think it would be admitted. there might be a challenge in that case. this is a facial challenge. if there is some sloppiness in the with the federal government keeps its records so that there are lots of people who should be registered but are not, i would not imagine that sloppiness would have a pre-emptive effect. in thinking about section 3 in particular, the analogy is not the fraud, it is really the state court law that says it is a violation of state court lot to not even seek the approval

needed under the fda for a device. the state used tort law. it serves the federal interest. it does not have a lot of information but it forces people to get fda approval. this stable force people to register which is what the federal government is supposed to want in the first place. i think it is important to recognize that before 1986, the government was not agnostic about unlawful employment by aliens. the employees were already covered in there were subject to deportation to the government said we will cover the employers for the first time. i can't imagine why that would have a preemptive the fact. > [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2012] >> upon us of the arizona

immigration law will continue to challenge the provision of held by the supreme court. meis the part called 'show your papers.' >> good morning. this is a dark day for civil- rights and america. the supreme court today upheld racial profiling by states and it will have the impact of u.s. citizens, american citizens, being profiled and persecuted for no reason other than their race or the color of their skin. this is a disastrous decision for civil liberties and civil rights in america. courtpleased the overturned several other reprehensible provisions of the arizona law.

however, the worst provision, the so-called 'show me your papers,please' provision that allows profiling, this disaster is 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 emigrants all over this country turned out in record numbers to elect representatives who will push for immigration reform and insure we have justices who uphold this country's great positions 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 was a decision that the supreme court just issued and sent a message to states like

arizona. three out of the four provisions were struck down and we're glad to hear that. however, section 2b which has been upheld the provision that has had the most direct impact on our community so far. it is basically allowing law enforcement to go forward and racial profile poor people and people of color. we believe this is a decision that steps -- setbacks of a ride in vow to continue fighting, particularly the racial profile part until the struck down. our loss it has a number of civil rights constitutional challenges including the first amendment, fourth amendment, and 14th amendment. we believe this provision is a violation of the equal protection clause and eventually it will be struck down. we need the community to organize to advocate and to join us in our litigation. any state that is considering following the footsteps of

arizona with respect racial profiling should take heed because we will be challenging those actions in court. finally, other states know this is not the way to treat immigrants with our diverse community and the way the demographics are shifting in this country. we must change the path. we have to stop falling arizona's footsteps of pursuing policies based on hatred and fear and instead trying to be inclusive and integrating immigrants into our -- into our community and respecting our constitutional rights. >> as you all may know, seiu is the largest union of immigrant workers in the country. as such, we have been following very closely not only this bill but advocating for comprehensive immigration reform. 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 say and echo what has been said -- we are very pleased that the supreme court appears to say 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 is clearly in violation of human and civil rights and it will, in fact, lead to racial profiling. when we look at the way that the sheriff in phoenix, ariz. has been implementing law, i think he is going to believe that he now has a green light to continue that kind of activity

while we have news for the sheriff. this law will not stand. we will join with any other organization in this country to continue to challenge and show why racial profiling is an integral part of this bill and will be extra i -- extremely harmful to the civil rights of workers and the civil-rights of people in this country. we will also join with the center for community change and hundreds of other organizations throughout this country to make sure that no more states and no more policies -- politicians are elected who welcomed 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 6. we expect 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 6, latinos will have to find the words. we will say this law is wrong and it will be overturned by the power of our vote and we will make sure that we have an immigrant system that will do justice to a country of immigrants, thank you. >> we are helping the organizations in phoenix do what they can to fight the terrible, brutal, on ethical 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 traffic stop just because i

look like an immigrant. we're very pleased that some of the 1070 law has been struck down. the governor, our share of, or infamous share of with this terrible presence have been trumpeting how they will win. we have done things like recall the president of our summit because of sponsoring this bill. 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. 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 green act is a very -- the dream act is a small thing and could have been done a few years ago. millions of fans have been broken in phoenix and elsewhere around the united states. they have been brutalized by children separated from their parents, put in jail, and we are very happy to see some progress here by th court. in striking down some of the provisions of 1070. i work with other reservations. for now demonstrating -- other organizations were demonstrating in phoenix. >> after the supreme court decision, president obama said there is a renewed concern about the practical impact of the remaining provision of the arizona law.

republican presidential candidate mitt romney said it -- -- hours on a governor jan because the heart of was up held, the legislation was vindicated. she spoke with reporters for about 10 minutes. good morning to all of you and thank you all for being here. this morning. let me begin by saying that from the moment i saw and into law

enforcement, arizona has been preparing for this day. the facts have too often been rhetoric. let's reflect on what has brought us here today. this it seek out the task of having to confront illegal immigration. we cannot forget that we are here today because the federal government has failed the people regarding immigration policy. it has failed to protect its citizens and failed to preserve the rule law and failed to our borders. the failure to secure the border has created issues we now face illegal immigration. question and of that failure. we cannot forget that president his party at hand -- in congress for

years and could have secured our borders and fulfilled the promise to fix our broken immigration system. they failed. in response, and arizona have no other choice but to act and arizona did so by following, not changing, federal law. arizona, federal government should have spent time, money, and on fixing the problem. when the key of our efforts to protect the citizens of arizona, the fight against illegal immigration in a balanced and constitutional way unanimously been vindicated by the highest court in the land. the hearts of senate bill 1070 has proven to be constitutional. arizona and every other state

can protect and defend its been upheld. i pray for strength and i pray state before i signed 1070. i did so because i firmly believe it represented what was best for arizona. border-related violence and crime and a significant financial cost due to illegal immigration are critically important issues to the people state and to me. both as governor and a citizen. as i have said, this is the day for mistake, arizona is ready. we know the eyes of the world will be upon us. we know the critics will be waiting, hoping for another opportunity to continue their legal assaults against our state. i have faith in our law our brave men and

women in uniform have been trained so they are able to this law efficiently, effectively, and in harmony with constitution. civil rights will be protected. racial profiling will not be tolerated. senate bill 1070 is equally committed to upholding rule all that the constitutional rights bubble and arizona are protected including prohibiting law enforcement officers from solely considering race, color, or national origin in implementing and -- in implementing its provisions. direction, senate bill was amended to strengthen the importance rights are protected. arizona is prepared to move forward, to enforce this law that we have fought so hard to defend, ever mindful of our

rights, ever faithful to the constitution and ever-worthy of god who has given us that that we share notns and -- as arizonans and americans. there were three other law. that you cannot do that. how do you defend having signed something like that? and senate bill 1070 was vindicated. the heart of the bill was up held. unanimously.

>> [inaudible] being -- being upheld, is practicable to inform the legal ability of someone being in the state of arizona. to day status, the point? you pick up someone who was ice says so what. you have accomplished nothing. >> i believe we have lot and it was up supreme court and we move ford instructed law to begin practicing

what united states supreme court has upheld. that there will be challenges. on three of the provisions and prevailed on one section. as a victory. not the end of our journey. we fully expect lawsuits to be filed and that this portion of will be prepared if that takes place. what makes this history, then? [inaudible] >> i think the court upheld the ability of local law enforcement to assess the federal cut -- to federal government in federal immigration laws which have the authority

under reasonable suspicion to who has already been apprehended to certify whether they have legal status and arizona. i would think it would be in effect immediately. might want to speak to a lawyer but my personal opinion is that when this appel by the court, it would be . said states for immigration status. was the heart of the law. local law enforcement has the information from people they apprehend in the of a crime and now has been validated unanimously by

the united states supreme court. thank you all for being here. >> the federal government is saying they will not support these people. don't lie, matt. >> the senate judiciary committee is looking into effective practices in federal elections. you can see that on c-span 3 at 10:00 eastern. in a few moments, today's headlines and your calls lie "washington journal on,." at 10:15 eastern, bill gates speaks about the future of public higher education at the association of and in a few moments, we will focus on the supreme court decision yesterday to strike down most of arizona's immigration law. our guests include "wall street journal" supreme court correspondent jess bravin, and