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Immigration Brings High Drama To The High Court

This artist rendering shows Solicitor General Donald Verrilli speaking before the Supreme Court. Verrilli argued Wednesday that Arizona's immigration law steps into federal territory.
Dana Verkouteren
This artist rendering shows Solicitor General Donald Verrilli speaking before the Supreme Court. Verrilli argued Wednesday that Arizona's immigration law steps into federal territory.

A majority of U.S. Supreme Court justices signaled Wednesday that they will uphold at least part of Arizona's controversial immigration law. Four provisions of the law were blocked by a federal appeals court last year, and while even some of the court's conservatives expressed skepticism about some of those provisions, a majority seemed willing to unblock the so-called "show me your papers" provisions.

Those provisions require state and local police to check the immigration status of anyone they stop for any reason — no matter how minor — if the officer reasonably suspects the individual is illegally in the country.

Civil rights groups have said that if the show-me-your-papers provisions are upheld, they will challenge them later as a thinly veiled mechanism for racial profiling. On Wednesday, however, the only question was whether the law illegally or unconstitutionally usurps the immigration powers of the federal government.

Political By Nature

For a case that is about show-me-your-papers, it was more than a little odd that the Supreme Court police — for the first time anyone could recall — asked reporters on the Supreme Court plaza to show their IDs to get into a roped-off area where TV cameras routinely set up.

It was even stranger when police then refused to allow lawyers and principals involved in the case to come over to the microphones. Even Arizona Gov. Jan Brewer was barred from the press gaggle. Finally, after a near insurrection from the press corps, the court cops relented.

The political nature of the case was quickly apparent when Brewer, accompanied by a close adviser to Republican presidential candidate Mitt Romney, accused the Obama administration of challenging the Arizona law for political purposes.

"This is an election year, and I believe that [the Obama administration's challenge] was staged," Brewer said. "They're playing to the Latino community."

Inside the courtroom, the questioning was so intense that Chief Justice John Roberts extended the allotted time for argument by 20 minutes.

Documentation Provision Fuels Questions

Despite apparent doubts about other parts of the law, most of the argument focused on the show-me-your-papers provisions.

Representing Arizona, former Bush administration Solicitor General Paul Clement got his first questions from the court's only Hispanic justice, Sonia Sotomayor. She asked how Arizona's law would function if a state officer checking someone's immigration status was told by federal authorities, "Yes, he's an illegal alien. No, we don't want to detain him. "

Clement responded that the Arizona police officer would then determine whether the individual violated any state law, and if not, would release him.

Justice Anthony Kennedy was concerned about the amount of time it could take to verify a person's status. If it takes two weeks to make the determination as to whether the individual is deportable, he asked, can he be held by the state for the whole period of time?

Clement replied that there are always constitutional limits to such a detention.

But when pressed on this point by Justice Stephen Breyer, Clement acknowledged that he could not say for certain that under Arizona's law, an individual would not stay in jail longer than he would without the law.

Justice Samuel Alito also observed that a U.S. citizen who is stopped often cannot prove that he is a citizen, since there is no federal database of citizens.

"We are told," Alito said, "that there are some important categories of aliens" with pending immigration applications. For example, those seeking asylum from foreign persecution, people who "nobody would think should be removed."

And yet, the data check would show that these people are in removal proceedings because they do not have a final grant of approval yet. Under the law, that would mean they would go to jail.

At Issue: Stepping On Federal Toes

Following Clement to the lectern was Solicitor General Donald Verrilli, who challenged the law as an unconstitutional encroachment on the federal government's exclusive immigration power. But before he could speak, Roberts said he would like "to clear up at the outset" what the case is "not about."

"No part of your argument has to do with racial or ethnic profiling, does it?" the chief justice asked.

No, Verrilli replied.

That is what makes the challenge to the show-me-your-papers provisions so difficult. The government has brought what is known as a "facial challenge," meaning that it claims that the law is unconstitutional in all its applications.

While some of the justices did seem to agree that other parts of the state law may be in direct conflict with the federal law, they seemed more skeptical about the challenge to the show-me-your-papers provisions.

"Arizona is not trying to kick out anybody the federal government has not already said does not belong here," Justice Antonin Scalia said.

'Come Up With Something Else'

Given the number of people illegally in the country and given limited federal resources, Verrilli said, the federal government has to set priorities, and those priorities focus on dangerous criminals, gangs, drug cartels and suspected terrorists. Arizona, he argued, is trying to change those policies with a program of "mass incarceration."

Roberts asked why Arizona could not have a different set of priorities.

The priorities have to be set at the national level, Verrilli responded, because "it's the whole country, and not an individual state, that pays the price."

But all the state is doing is notifying the federal government when somebody is illegally in the country, Roberts suggested. It's up to the federal government whether to prosecute or to deport these people.

Not so, countered Verrilli. He said the state says to the federal government, "If you're not going to remove them, we are going to prosecute them under state law for being in the country illegally."

"It seems to me the federal government just doesn't want to know who is here illegally," the chief justice said.

Verrilli disagreed. He said that Arizona's law, rather than helping, in fact hinders the mutual enforcement of federal priorities by flooding the system with minor cases, allowing big ones to fall through the cracks, and making the federal government accountable for state priorities.

"So you're saying the government has a legitimate interest in not enforcing its laws?" Kennedy asked.

Sotomayor told the solicitor general that his main argument was "not selling very well" and asked him to "try to come up with something else."

'Mass Incarceration'?

Verrilli listed the various categories of people who would not be able to prove they are in the country legally: victims of spousal violence, victims of human trafficking, witnesses to crimes and those seeking asylum. All of these people have valid claims to being in the United States, Verrilli said, but until their applications are approved, they are in technical violation of the federal law and thus could be prosecuted under the Arizona law for being in the country illegally.

Indeed, Verrilli noted that the federal government often keeps information secret about these people to protect them from retaliation, but that very secrecy could well land them in an Arizona prison.

Finally, he argued that Arizona's law could compromise the president's conduct of foreign relations.

Arizona, he said, is engaging in "mass incarceration" under this law, a system that will antagonize important allies like Mexico, which shares our border and whose cooperation the U.S. needs on everything from law enforcement to deportation proceedings.

Outside after the argument, Arizona's governor was asked if, in fact, the state does have plans for a mass incarceration of the estimated 400,000 illegal immigrants in her state.

Brewer paused for quite a long while and then replied: "If they're breaking the law, there's that possibility, I would assume."

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Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.