José Cardenas: All eyes were on Arizona this week as SB 1070 went before the highest court in the land, focusing on sections of the law blocked two years ago as well as the State's role when it comes to immigration policy when is essentially under the federal government's control. With me is ASU law professor, Paul Bender. Dean Bender, welcome back to "Horizonte". You of course have been to the Supreme Court before literally as a principal deputy solicitor-general in the Clinton Administration and in prior administrations.
I'd like to start with just your overall impressions of the oral arguments, and then I want to talk specifically about the four sections that were at issue.
Paul Bender: My overall impression was affected by what happened right at the beginning of the argument. I had thought that the state had been taking the position that section 2-B, which is the one that's most prominent which people talk about that police can stop people and ask them to show that they're here legally, it doesn't say that. It says for a lawful stop, the police should investigate the immigration status if they have a reasonable suspicion. I thought that the state would take the position or was taking the position that, if when you call the federal government and you find a person is here illegally, that the state can do something at that time because the person's illegal, and I know the Sheriff in Maricopa County. I think he clearly says, “If I find somebody illegal, I'm going to arrest them and keep them here.” At the beginning Paul Clemente, representing the state, said, “No. We don't take that position. We believe all the state can do is ask the federal government about the immigration status and report to the federal government that they have an illegal immigrant. If the federal government wants to hold a person, then the person should be held and turned over to the federal government. But if the government says, “We do not want to hold that person.” Paul Clemence said the state must let them go and must not detain them any longer then they would have detained them than if the immigration issue hadn’t arisen. So that basically makes section 2B, the most prominent section, it doesn’t mean anything. It’s exactly what the law is now. The law now is that police can do that if they want. Arizona law now puts the obligation on police to check immigration status if they have nothing better to do. But having done that it doesn’t give, said Clement, the state any right to detain a person any further the only right it gives is if the federal government wants to detain them, they can do that, just the fact that he's here illegally is not a basis for detention. That's what Clement said the statute meant. If the statute means that, that part of the statute really raises no constitutional problems.
José Cardenas: It seemed to be a big problem for the solicitor-general, because even justice Sotomayor seemed to be questioning why is there an issue if all we have is the state calling you and saying you, the federal government, if this person's here illegally, do you want us to let him go?
Paul Bender: And they really had a hard time dealing with that issue.
They have an argument that the whole statute is unconstitutional even if it doesn't have any real tangible effect. The statute announces at the beginning that the purpose is to -- I think it's called attrition by enforcement or something like that, that the state wants these people to leave the United States, and that's why the statute is enacted. They have, I think, a very strong argument that that's an unconstitutional purpose. States have no right to decide who can be in the United States and who cannot be in the United States. If they're in the United States, states have no right to say that they can't come into our state, because movement around the United States has to be free if they're here legally.
José Cardenas: Justice Scalia seemed to take issue with that and would disagree with you on that point.
Paul Bender: Definitely.
José Cardenas: Saying states have the right to protect their borders.
If somebody's in the country illegally, why can't the state take it upon itself to say we don't want you in our state either.
Paul Bender: He does take that position, but no one else on the court seemed to agree with him, and I think the position is clearly wrong. If somebody has been let into the country by the federal government, then the fact that they're technically illegal doesn't give the state the right to stop them at the border and say, you can't come in. You don't want a country where states protect their borders from other states. The argument was you have no right to try to get these people out of the United States. That's the federal government's job. And I don't think that's a winning argument in the Supreme Court. I think they're going to take these provisions one by one.
They're not going to take the whole statute was a package and say it's badly motivated. I'd be surprised if they did that.
José Cardenas: The part of 2-B that did seem to trouble and might be of concern to Justices Breyer, Sotomayor, and Ginsburg, and maybe even Kennedy. It was, if you arrest somebody, you can't let them go until their immigration status has been verified.
Paul Bender: Kennedy, I thought, made it very clear that he would be distressed if it led to prolonged detention. There was some argument. At first Clement said, well, you can get verification of the status within seven or eight minutes. Then he said, well, make 11 minutes. Later in the argument, I think Verley said, well, that isn't really true. It would be an hour. That's all the court seemed to think was acceptable. So I thought that came out very clearly that they would uphold 2 if the state was going to enforce it as just an informational exchange between the state and the federal government where the state says, hey, we have somebody here. Is he legal or illegal? And the federal government says, well, as far as we know, he's not legal. So now the federal government knows about the person, and it's up to them what to do with them. If the federal government doesn't say, we want them, the state has to let him go or treat him the way they'd treat him if there were no immigration problems. That was the interpretation of the statute that Clement gave. He did not do that in his brief, and that surprised me. When reading it, hey, he's given up the whole case before he started, because it doesn't mean what everybody thought it meant. That's what happened at the argument.
José Cardenas: And the lengthy detention issue, what he seemed to be saying is I don't think they'll do anything different than they are right now but, if they do, that's for a different day. That challenge is for a different day, because this is a challenge saying there are no circumstances under which this could constitutionally be applied.
Paul Bender: And I think that's a correct argument, but it's a problem because almost inevitably there are going to be detentions that last too long. The sheriff in Maricopa County says, I don't care about federal law.
I'm going to stop these people and keep them jailed. What do you do then when the statute is being applied by some sheriff somewhere in an illegal nonconstitutional way. We have to see what happens then. Maybe the district would retain jurisdiction of the case and you'll be able to go to judge Bolton and say, hey, the state is not doing what it said to the Supreme Court it was going to do. Then you need to deal with that. Yeah, that's left open.
José Cardenas: Last week on the show, we had grant woods, former Arizona Attorney General, talking about an amicus brief that he and Terry Goddard and others filed. Their point was there will be racial profiling. It is inevitable. And yet today the justice -- Chief Justice Roberts went out of his way to get the government to concede that this case had nothing to do with racial profiling.
Paul Bender: Because the government decided not to raise that issue.
I think some other parties in the case did, but the case that the District Court decided and the ninth Circuit Court decided, they did not raise that issue. Maybe it was a mistake, because I think it's almost inevitable that there will be racial profiling. I think probably you ought to give -- it says in the statute there will be no racial profiling. Very hard to say. Even though they say there won't be any, we know there's going to be. I think it's probably right for the government not to raise that issue and see what happens.
José Cardenas: Isn't the response to that what others have said, which is that the statute says you can't profile racially except to the extent permitted by the Arizona and U.S. constitution, and federal and state courts have permitted racial profiling.
Paul Bender: Well, if it's permitted by the U.S. and Arizona constitution -- I don't think it is -- it's a very hard thing to discriminate between racial profiling and just using common sense and deciding who might be committing a crime and who might not be committing a crime. It's especially hard in this area where -- how does a police officer have a reasonable suspicion that somebody's in the country illegally? It's almost got to do with -- not in every case but in most cases what they look like, how they speak, how they dress, that kind of thing. And that comes very close to being racial profiling. And that's another reason why I think it's probably right not to do it now, because you really want to know how that works. As long as you have a federal court that's willing to step in if it's working badly and stop it. Because it's very hard on the face of the statute to know how the police are going to enforce it. And if they're only asking people who they would otherwise have arrested for another offense, then the racial profiling is not -- it seems to me is dangerous if all they can do is ask questions based on it, and then if the person is illegal, they still have to let him go unless the federal government wants to keep him. The racial profiling really doesn't have any effect until the detention is very long, which the courts seem to think it shouldn't be.
José Cardenas: So it's more than a issue of detaining people on a much higher frequency, people who are actually citizens of the United States but, because they're dark skinned, they're the ones that get stopped.
Paul Bender: Right. I guess, if that happened a lot, then there would be a very coherent and strong racial profiling complaint that would be made against it. But I think you don't know that that's going to happen. We in Arizona may know or almost know that it is going to happen, but I think it's right for the courts not to presume that that's going to happen.
José Cardenas: Let's talk about some of the other provisions. Section 3, which has to do with papers that you're supposed to carry, registration papers if you're an alien. It's a violation of state law in addition to federal law not to have it.
Paul Bender: Yeah. That's troublesome to me and I think very troublesome to the court. It creates a separate state crime. If Paul Clement was right that, if the federal government says they're illegal but we don't want them, that the state has to let them go, then section 3 either doesn't mean what it says or it's unconstitutional, because section 3 seems to say, if you're in Arizona without the right papers, you're committing an Arizona crime. As Justice Breyer pointed out the argument, it's 20 days or 30 days if it's a repeat offense, but then you can re-arrest the person when you let them out because it's a status crime. It seems to me that's really got to be unconstitutional, because there are a lot of people who don't have papers who the federal government does not want to be harassed or put in jail. They could be students whose student visas have expired. They could be people who for some technical reason don't have the Visa they move. It could be a professor or somebody who's making a tour around the United States on a State Department invitation or somebody who's seeking amnesty. They don't have papers either. The Attorney General can suspend deportation. There's a whole group of people who won't have their papers, but the federal government or federal law does not want them detained or deported. To have a state say it has the right to repeatedly put them back in jail over and over and over again because it decides that it wants to do that, that seems to me clearly unconstitutional.
José Cardenas: What about section 5, the part that makes it a crime for people who are here illegally to obtain employment?
Paul Bender: That, if there were no federal law on the subject, I would think the state has a right to do that. And I don't think too many people would disagree with that. The problem with that constitutionally is that there is federal law on the subject. The federal government carefully considered what to do about illegal aliens who were employed or sought employment. They decided to make and impose criminal penalties on the employer and deliberately decided not to impose criminal penalties on the employee, because they feared that, if that were done, there would be racial profiling, and there would be a lot of discriminatory enforcement, and a lot of innocent people would get caught up in the web because they wouldn't have their papers.
José Cardenas: That seemed to be the one place where Clement had problems.
If you read the legislative history, you know this was considered by the federal government. They made a conscious decision, and therefore we should respect that.
Paul Bender: I think that's a powerful point. Now, it was interesting because I think she said, those of us who believe in looking at legislative history know that was meant for Justice Scalia who doesn't believe at looking at legislative history saying he was going to uphold the statute anyway, but I think that's a very powerful argument and very hard, I would think, for Kennedy to ignore that. I think what you have is probably unanimous court that section 2 is OK, because it really doesn't change anything. It just regularizes what the police had a right to do anyway. Sections 3 and 5 are unconstitutional, at least four people, I think would hold that, Kennedy and the three liberals. If that's what happens, you have a 4-4 split on those issues, and the ninth circuit would be affirmed by an equally divided court, and I think they would not write an opinion on that. It's possible Roberts would join with the liberals and Kennedy to hold those unconstitutional and uphold section 2 and assign the opinion to himself so he could write an opinion which says what he wants to say about the federal/state relationship. He wrote the opinion in the last Arizona immigration case that was up there about the employment sanctions law. That's a very intriguing possibility that happens here, because Justice Kagan is not participating. If Kennedy goes with the liberals, that's only four, and that would automatically affirm the ninth circuit without opinion, and Roberts might feel that that's not good.
He doesn't like the ninth circuit opinion, so he'll vote with them, and he'll write an opinion doing what I suggested they would do. And this would be the way he wants to put it, and he would have a much narrower view, I think, of the preemptive effect and a greater view of what the states can do than the ninth circuit.
José Cardenas: We didn't say much about Section 6, but neither did the Supreme Court in oral argument.
Paul Bender: That’s because nobody knows what it means.
José Cardenas: This is the one that gives the police the power to arrest somebody who's, quote-unquote, removable under federal law.
Paul Bender: Because they've committed a public offense. Nobody knows what public offense means. Nobody knows if they're referring to offenses committed in this state, in another state, people who may have committed an offense and served their time but are still removable because they're aliens. I think the right thing to do is, you don't know what it means, you don't strike it down on its face and see how the state ends up enforcing it.
José Cardenas: How long do you think we can expect a decision?
Paul Bender: You can expect a decision by the end of June, because that's when the court recesses for the summer, and I would expect this case to come down at the very end of the term. So I would think the last day of the term, certainly the last week of the term, the last week in June, would be when this comes down along with the Obamacare case which will also, I think, come down at the very end of the term.
José Cardenas: Because you have argued cases in front of the Supreme Court before, because you have been in the shoes of the solicitor-general, arguing matters in front of nine justices, what would you have done differently if you had been arguing for the government?
Paul Bender: It's a hard question. When the solicitor-general heard that Clement was changing the State's view of what section 2 meant to a provision that really didn't cause problems, he had a decision to make. Should he say we still think it's unconstitutional or should he say, well, OK. If that's what it means, we're going to challenge it. I think the right thing to have done would be to say, we think the whole statute's unconstitutional, because the purpose is, if you agree with us, strike the whole thing down. If you don't agree with us and you're going to look at the statute provision by provision, then we have no objection to section 2, because it doesn't really affect anything other than the transfer of information, and we have no objection to the transfer of information. Instead, he tried to attack section 2. And Roberts kept saying, how can you complain of a statute that has law enforcement officials tell you that there are illegal people here?
Don't you want to know? Doesn't federal government want to know about illegal immigrants? And they really did not know how to deal with that. On reflection, it's Monday morning quarterbacking. I think it would have been better if he left that attack and made clear his attack on sections 3 and 5.
So that's the main thing I think I would have done differently.
José Cardenas: Paul Bender, former Dean, ASU Sandra Day O’Connor College of Law, thanks for joining us on "Horizonte".