WASHINGTON -- Justices of the nation's high court indicated Wednesday they may allow Arizona to implement the most controversial part of its 2010 immigration law.
The justices repeatedly questioned the contention of U.S. Solicitor General Donald Verrilli that the state has no right to require police officers to question the immigration status of someone they have stopped if they have "reasonable suspicion'' that person is in this country illegally.
Justice Samuel Alito pointed out that nothing in federal law precludes an officer, on his or her own, from calling federal immigration authorities to make such a check. In fact, he noted, federal law mandates that immigration officials respond.
The only difference, he said, is this takes what is permissive and makes it mandatory.
"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,'' Alito said.
Verrilli argued the mandate forces federal officials to take time that might be better spent focusing on inquiries from around the country about people who may truly be dangerous. Anyway, he said, it also leads to the possibility of harassment.
But the challenge of the Obama administration to SB 1070 is not based on a contention of racial profiling. Any such claim is premature as the law never remains on hold while its legality is debated.
"Sounds like racial profiling to me,'' quipped Justice Antonin Scalia.
One issue that did seem to concern the justices is exactly what happens when someone is stopped. They noted that federal law and court rulings limit the amount of time police can detain someone absent evidence of a crime.
Paul Clement, the private attorney hired by Gov. Jan Brewer to represent the state, said such inquiries take no more than 11 minutes. Verrilli said that's only half true: It takes 11 minutes after someone has answered the phone -- after what could be 60 minutes on hold.
But Clement said even if immigration officials confirm someone is in the country illegally, that does not lead to someone being detained. He told the justices if federal agents say they're not interested, that's the end of the matter and the person is released.
"It is not an effort to enforce federal law,'' said Chief Justice John Roberts told Verrilli.
"It's an effort to let you know about violations of federal law,'' he continued. "Whether or not to enforce them is still entirely up to you.''
Verrilli said that ignores the other three challenged sections of Arizona law.
One makes it a state crime to be in this country illegally without possessing certain federal documents. Another lets state and local police arrest someone who has committed some offense which makes them subject to deportation under federal law. A third criminalizes being an undocumented person seeking work.
Verrilli told the justices all three are areas the federal government clearly has reserved for itself and has spelled out its own penalties, making them off limits to state action. He said it is that initial questioning by state and local police that SB 1070 mandates which leads to the infringement on federal authority in those other areas.
He said that's borne out in the wording of SB 1070 which says the goal is "to make attrition through enforcement the public policy of all state and local governments in Arizona.'' It also says the provisions "are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.''
That, Verrilli said, proves that the section on stopping and questioning has to be seen as part of the whole scheme, a scheme he said is illegal.
Clement said the court needs to view SB 1070 through the eyes of those affected.
"The state of Arizona bears a disproportionate share of the costs of illegal immigration,'' he said. Clement told the justices that all SB 1070 does is incorporate what already is illegal under federal law and add its own resources to help.
Verrilli acknowledged the federal government has limited resources and prioritizes who to pursue for violating federal immigration law. But he said the failure of Immigration and Customs Enforcement to go after every illegal immigrant did not give the states license to step in under the premise they are simply helping, saying only the federal government gets to determine those priorities.
The justices were not so sure.
Scalia pointed out that it is both a federal and state crime to rob a bank.
"Does the (U.S.) Attorney General come in and say, you know, we might really only want to go after the professional bank robbers?'' he asked, and not to prosecute an "amateur bank robber.'' Scalia asked Verrilli if the state could bring its own charges against that amateur.
Verrilli conceded the point but said immigration law is different.
One thing that makes it different, he said, is the possibility of the state using its own laws to have "mass incarceration'' of the approximately 400,000 illegal immigrants living in the state, people who have not been a priority of the federal government to pursue.
While Brewer did not speak during the hearing, she did not dispute that possibility in comments afterwards.
"I would presume there would be mass incarcerations if they had broken the law on the first offense,'' she said. "If they're breaking the law, there's that possibility.''
Verrilli said such mass incarceration could lead to foreign relations problems, if for no other reason than it might affect how other governments deal with U.S. citizens abroad.
Scalia said there's a simple answer to that: Deport them back to their home country.
Verrilli said that could lead to international problems with Mexico, which is where the majority of those sent back come from, because that country's government cooperates with ours on various border issues.
"So we have to enforce our laws in a manner that will please Mexico, is that what you're saying?'' Scalia shot back.
"I'm not saying that,'' Verrilli responded.
"Sounded like what you were saying,'' Scalia said.
Scalia said the question may come down to state sovereignty.
He said SB 1070 could be read as regulating illegal immigrants, not as regulating immigration which is a federal issue.
"If, in fact, somebody who does not belong in this country is in Arizona, Arizona has no power?'' he asked Verrilli. "What does sovereignty mean if it does not include the ability to defend your borders?''
Verrilli said there has to be a single national policy on immigration and deportation. Otherwise, he said, states like Arizona could end up taking actions that interfere with other federal issues, like foreign policy.
"Arizona is not trying to kick out anybody that the federal government has not already said do not belong here,'' Scalia responded.
Brewer, in her post-hearing comments, lashed out at the Obama administration for challenging the Arizona law, saying that decision was more about politics than the law.
"This is an election year,'' she said, saying the lawsuit, filed in 2010, was "staged'' with this year's presidential race in mind.
"They are playing to the Latino community,'' Brewer said. "They're trying to use that scare card, if you will, to generate support.''
But Brewer, who inherited the office in 2009 when Janet Napolitano resigned, brushed aside the question of whether she signed SB 1070 in 2010 to ensure she would win a full term as governor that year.
"I signed the bill after reading it and amending it as it went through the Legislature to make sure that it absolutely did what we wanted it to do, which is to address the terrible situation that Arizona was facing ... knowing that it would be a lightning rod in some arenas, that the race card would be thrown out,'' she said.
Brewer said the legislation -- at least the revised version approved several weeks after she signed the initial bill -- specifically prohibits the use of race as a factor in determining who to question.