Ted Simons: Good evening. Welcome to "Arizona Horizon." I'm Ted Simons. Arizona returned to the national spotlight today as the U.S. Supreme Court heard oral arguments on the constitutionality of Arizona's controversial SB 1070 immigration law. Governor Jan Brewer asked the high court to review the case after lower courts prevented key parts of the law from taking effect. Here with his analysis of today's oral arguments is ASU law professor Paul Bender, who has argued more than 20 cases before the U.S. Supreme Court. Good to see you again.
Paul Bender: Nice to see you Ted.
Ted Simons: impressions?
Paul Bender: It was very interesting. The core provision of SB 1070 is section 2, which provides that policemen have a reasonable suspicion they have illegally stopped is in the country illegally are supposed to check up on immigration status and check with the federal government. The lawyer for the state started out the argument by saying it did not mean what everybody thought it meant and what the state has been saying it meant and what the sheriff Joe has been saying, namely if the state finds somebody and they check immigration status and federal government says that person is here illegally, the state, he said, their lawyer, the state cannot detain them unless the federal government wants them to. That if the even if they are illegal if the federal government says we don't want to detain them the state must set them free. That was the basis on which the state argued that the legislation was constitutional. That's the basis on which I think the court is going to uphold it. Basically it doesn't mean anything. It just is a facilitating way of having the state and federal government exchange information. They gave that away right at the beginning of the case. That was very interesting.
Ted Simons: Was it surprising to you?
Paul Bender: Yes, because it's not in the brief anywhere. I reread the brief to see what they said. No.
Ted Simons: Well let’s put a practical application on this…someone is picked up for going speeding or doing whatever they are doing and found to be not having the right documentation, not here legally. Local law enforcement contacts the Feds. The Feds say, that's interesting. Thank you. Goodbye. The state let's them go?
Paul Bender: No, they don't have to let them go if they have a state reason for holding them. If he was drunk driving they can hold him for that, but they can't hold him because he's illegal unless the federal government says we want him detained. That's the argument the state made to the Supreme Court. It was on that basis that the Supreme Court seemed to me and I think they will do it unanimously, uphold that part of the law because it doesn't change anything.
Ted Simons: That's a Pyrrhic victory, isn't it?
Paul Bender: If you think the statute was enacted as a protest, if any part of it is upheld people behind it will say, we won. It's been upheld, but in fact, it is a Pyrrhic victory because that part doesn't mean anything. There's parts of the statute that do mean something. The two main parts, namely the part that says it's a state crime for ill else will to apply for jobs and the part that says it's a state crime to be in the state without proper federal documentation. I think the court will strike those two down as preempted by federal law.
Ted Simons: Ok, so there are four things the court is looking at. You think the court will uphold the first because it doesn't do all that much.
Paul Bender: It doesn't do anything.
Ted Simons: The second is local police can arrest suspected undocumented folks without warrant. What about that?
Paul Bender: No, that one I think they will say is on its face not unconstitutional and so they won't strike it down. Remember, this is a facial challenge. The question is, on its face is the statute unconstitutional. In order to strike it down they have to say you read it you know it's unconstitutional. It can't be applied in a constitutional way. That one they don't know what it means. Nobody knows what it means. The court made that clear today. So I think that one they will not strike down because how can you strike something down as unconstitutional if you don't know what it means? But the other two which say that it's a state crime for illegals to apply for work, that's preempted by federal immigration law because Congress deliberately decided not to make it a crime for illegals to seek employment but instead to make it a crime for the employer to employ them. So that I think will be held to be preempted. The federal government had a reason for doing it. They don't want people prosecuting illegals seeking employment because they are afraid if people do that even United States attorneys they will make a raid on a factory and they will grab people who don't have their papers and intimidate a lot of people and sweep up a lot of people who are legal. They didn't want to get into that. They want to be in control of it.
Ted Simons: So basically not having papers, you think, will be struck down.
Paul Bender: Yes.
Ted Simons: Having it be illegal to seek or have a job will be struck down. Two you think the court might uphold, one because it doesn't do anything, the other because nobody knows what it means?
Paul Bender: Yes, the other two because they do do something.
Ted Simons: That's very interesting.
Paul Bender: Yes. That's my guess from reading the argument. And I thought it was pretty clear. It's interesting because chief justice Roberts made it very clear it seems to me that he was going to uphold the first part because it didn't mean anything. He repeatedly said to the solicitor general, hey, it doesn't mean anything, how can you be against it? The solicitor general said we are against it but I thought it was probably not wise of him to defend it. Then I think the case will be 5-3 if I'm right, 5-3, 6-2 on the things I just said. Roberts would be in the majority. Only Scalia, Thomas and maybe Alito will be in the minority. He can write the opinion himself. He can write an opinion which says the states have power but it can describe what the states can do in the way he wants to describe it whereas if he would have voted with Scalia and been in the minority then justice Ginsberg is going to sign the opinion and she may say something have broad about limitations on what states can do. That's because Kagan is recused if that happens.
Ted Simons: Right, it's basically a 4-4 thing. If it's a 4-4 vote, what the 9th circuit ruled stays.
Paul Bender: Right, so Roberts may say if Kennedy is going to join with those three to strike down the two provisions that I said, I'm going to join also because then I can write an opinion. Otherwise the 9th circuit opinion remains the law. So he would get a chance to write an opinion saying the 9th circuit overdid this and that. It should be a lot narrower.
Ted Simons: Which side did a better job presenting its case?
Paul Bender: That's hard to answer because Paul Clement is very glib. I think too glib. I thought he did not do a good job presenting his case because he just sailed past certain things and Sotomayor really stopped him and kept forcing him to confront the issue. But if his job was to have something upheld, then he did a good job by saying, hey, uphold this, it doesn't mean anything. Verrilli, once again, really disappointed me because I don't think he dealt with the situation. When the court said -- when the state said it was prepared to interpret section 2 as basically not changing anything I would have thought it would have been better for him to say ok if that's what it means we have no objection. Instead he got into a long argument with the court about why he objected even though it didn't change anything. The court did not accept that
Ted Simons: But wasn't his position, just reading from the transcript, sounds he was holding to… the government sees the law in its entirety as being an obstacle to what Congress, what the nation had in mind for immigration?
Paul Bender: I think he has a good argument that the law as a whole is unconstitutional, but it's not because the law as a whole is an obstacle. Because if it's interpreted the way the state says it wants to interpret it it's not an obstacle. It's because the motivation of the law is unconstitutional because the purpose clause says, hey, we're doing this to get rid of illegal immigrants and the state, I believe, and I think Clement believes, has no constitutional power to do that. Getting rid of illegals because the federal government's job, not the state's job. You can make a credible argument the whole thing is bad because the purpose is bad, but that argument usually doesn't win and I don't think it would have won in this case. My guess is, this is armchair, Monday morning quarterbacking, he would have been better off saying, oh, I didn't realize Clement thought that and the state thought that. They don't say that in the brief. If that's what they mean we have no problem with that because they won't get in the way. It was repeated; you won't hold these people for any longer than you would if there was any immigration problem said the court to Clement, and Clement said, absolutely not.
Ted Simons: Did he confer with Arpaio about that particular?
Paul Bender: That's interesting. If I'm right, what is Sheriff Joe going to do? He's been doing exactly what Clement said the state does not think he can do, namely hold people because they are illegal. Even though the federal government doesn't want to held them.
Ted Simons: Basically maximizing information and collaboration. That's as far as they went on it.
Paul Bender: That's what the justices seemed to think it meant.
Ted Simons: Great stuff. Mid, late June?
Paul Bender: I think it will be the last week of the term, and probably the last day. Same day the Obamacare comes down.
Ted Simons: It will be a busy "Arizona Horizon" then. Thanks again. We appreciate it.
Paul Bender: Nice to see you, Ted.