The U.S. Supreme Court's website has posted a preliminary transcript of the oral arguments today in Arizona v. United States, Arizona's challenge to the federal government's assertion that its 2010 anti-illegal immigration law SB 1070 conflicts with federal immigration law.
Four provisions of SB 1070, which were blocked in July 2010 by a federal judge before it took effect, are at the heart of the federal preemption argument and will be weighed by the justices.
A decision isn't expected until June. But from early reports from the courthouse, and from the questions asked by the justices, it appears that Arizona stands a chance of prevailing, at least on some provisions. This line of questioning between Justices Sonia Sotomayor and Antonin Scalia and U.S. Solicitor General Donald Verrilli, who is representing the federal government, sets the tone:
GENERAL VERRILLI: ...Mr. Clement is working hard this morning to portray SB 1070 as an aid to Federal immigration enforcement. But the very first provision of the statute declares that Arizona is pursuing its own policy of attrition through enforcement and that the provisions of this law are designed to work together to drive unlawfully present aliens out of the State. That is something Arizona cannot do because the Constitution vests exclusive --
JUSTICE SOTOMAYOR: General, could you answer Justice Scalia's earlier question to your adversary? He asked whether it would be the Government's position that Arizona doesn't have the power to exclude or remove -- to exclude from its borders a person who's here illegally.
GENERAL VERRILLI: That is our position, Your Honor. It is our position because the Constitution vests exclusive authority over immigration matters with the national government.
JUSTICE SCALIA: All that means, it gives authority over naturalization, which we've expanded to immigration. But all that means is that the Government can set forth the rules concerning who belongs in this country. But if, in fact, somebody who does not belong in this country is in Arizona, Arizona has no power? What does sovereignty mean if it does not include the ability to defend your borders?
GENERAL VERRILLI: Your Honor, the Framers vested in the national government the authority over immigration because they understood that the way this nation treats citizens of other countries is a vital aspect of our foreign relations. The national government, and not an individual State --
JUSTICE SCALIA: But it's still up to the national government. Arizona is not trying to kick out anybody that the Federal government has not already said do not belong here. And the Constitution provides -- even -- even with respect to the Commerce Clause -- "No State shall without the consent of Congress lay any imposts or duties on imports or exports except," it says, "what may be absolutely necessary for executing its inspection laws."
The Constitution recognizes that there is such a thing as State borders and the States can police their borders, even to the point of inspecting incoming shipments to exclude diseased material.
The "Mr. Clement" that Verrilli refers to in the transcript is Paul Clement, a former Solicitor General under the most recent Bush administration who is now representing Arizona.
Interestingly, the justices and counsel clarified early on in the arguments that the case does not deal with racial profiling. One of the provisions in question requires state and local police to check the immigration status of people they stop while policing if "reasonable suspicion" exists they are in the country illegally, an aspect of the law that has been harshly criticized as encouraging racial and ethnic profiling. But this aspect doesn't form part of what's being considered.
The complete transcript can be viewed here.